In October 2011, People for the Ethical Treatment of Animals (PETA) filed suit in U.S. District Court in San Diego on behalf of orca whales kept at SeaWorld parks in San Diego and Orlando. The complaint alleged that SeaWorld is holding the five marine mammal plaintiffs—Tilikum, Katina, Corky, Kasatka, and Ulises—in violation of the Thirteenth Amendment’s prohibition on slavery, after having been removed from their natural habitat, transported to the park’s facilities, bred, and forced to perform. The suit sought injunctive relief, including an order releasing the orcas to a court-ordered legal guardian who would find them a different permanent habitat, as well as a permanent order forbidding them from being held in slavery. PETA argued that although the Thirteenth Amendment prohibits slavery, its text does not specifically stipulate that the amendment applies only to humans.

Despite the federal judge’s dismissal of the case this past February, this case raised important questions about the issue of animal standing. The orcas were themselves the plaintiffs in this suit, with PETA, two former SeaWorld trainers, and three marine mammal experts representing them in court under the next friend doctrine, which allows another person to act on behalf of someone lacking full legal capacity. Usually the next friend doctrine is applied to human plaintiffs, such as infants and mentally disabled individuals, rather than animals.

Although many animal activists and environmentalists have staunchly advocated for animal standing, efforts to expand standing doctrine to include animals have garnered mixed results. Some courts have allowed animals to have standing in court to sue on their own behalf. In Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441 (1992), the Ninth Circuit allowed an endangered species of squirrel to bring suit under the Endangered Species Act, the National Forest Management Act, and the Arizona-Idaho Conservation Act. The Ninth Circuit also allowed an endangered species of bird to sue on its own behalf under the Endangered Species Act in Palila v. Hawaii Dep’t of Land & Natural Resources, 852 F.2d 1106 (1988). The Northern District Court of California also seemed receptive to the idea of granting animal standing in Marbled Murrelet v. Pacific Lumber Co., 880 F.Supp. 1343 (1995), when it allowed an endangered bird species to seek injunctive relief against a logging company under the Endangered Species Act.

However, other courts have criticized these decisions, stating that the issue of animal standing was not thoroughly examined in the courts’ opinions. See Lauren Magnotti, Pawing Open the Courthouse Door: Why Animals’ Interests Should Matter (80 St. John’s L. Rev. 455 (Winter 2006). For instance, the Third Circuit in Hawksbill Sea Turtle v. Fed. Emergency Mgmt. Agency, 11 F.Supp.2d 529 (1998), examined the cases mentioned above allowing for animal standing and concluded they lacked “significant analysis” of the issue. Granting animal standing was alluded to but not adopted by the Ninth Circuit in a later case, Cetacean Community v. Bush, 386 F.3d 1169 (2004).  Although the court denied standing to various marine mammals, it did somewhat encouragingly state that it saw “no reason why Article III prevents Congress from authorizing a suit in the name of an animal, any more than it prevents suits brought in the name of artificial persons such as infants, juveniles, and mental incompetents . . . . Article III does not prevent Congress from granting standing to an animal by statutorily authorizing a suit in its name.” Id at 1176.

Although animal standing would necessitate certain modifications to current legal doctrine, it also has the potential to improve our legal system. Conferring standing on animals so they could challenge private and government actions in court would contradict the traditional legal conception of animals as property. However, it could also save time and resources for courts and the parties involved by allowing for less convoluted and drawn-out litigation by acknowledging the real interests at stake, rather than requiring interest groups like PETA to attach the animals’ claims to aesthetic and recreational injuries of humans. Granting animals standing is also consistent with Congress’ intent to protect animals, as evidenced by legislation like the Endangered Species Act, the Animal Welfare Act, and the Marine Mammals Protection Act.

—Caitlin Zittkowski is a Contributing Editor on MJEAL.  She can be reached at czittkow@umich.edu.

Many now recognize that harvesting wind power through wind turbines provides one avenue for mitigating the effects of global warming. The Environmental Protection Agency also reports that wind is the “fastest growing energy source in the world,” making it not only a more environmentally friendly alternative to fossil fuel energy but also catalyzing economic growth and creating new job opportunities in the energy industry.  Wind power can also have a negative impact on the environment, dividing environmentalists about whether to advocate for its widespread use and causing some to approach wind power projects with reservations; however, new siting techniques and turbine technology could alleviate some of these concerns.

Besides meeting opposition from those who live near the sites of proposed wind projects, turbines also raise concerns about the effects they will have on birds and other wildlife. Although originally many thought that wildlife deaths from wind turbines could be explained simply as the result of collisions, additional research reveals factors that could be exacerbating the situation, as well as other possible causes of death related to the turbines. For example, one study indicates that turbines that are white or grey in color may attract insects, which in turn draw birds and bats that eat these insects. Scientists also speculate that insects and other animals may be attracted to the heat these turbines produce. In addition, researchers have discovered that some bats with no signs of collision injuries were actually killed by the drop in pressure from air flowing through turbines’ blades, causing their lungs to explode.

Animal fatalities from wind turbines occur at alarmingly high rates. For instance, Altamont Pass Wind Farm, southeast of San Francisco, which boasts four thousand turbines, kills between seventy-five thousand and ninety-three thousand birds every year, including birds protected under federal and state statutes, such as the golden eagle and the red-tailed hawk. The United States Geological Survey also estimates that wind turbines kill thousands of bats annually.

The cumulative effects of the deaths of these birds, bats, and other species could have a harsh ecological toll. In his testimony before the congressional Subcommittee on Fisheries, Wildlife and Oceans, the National Audubon Society’s Director of Conservation Policy Mike Daulton pointed to several ways in which these wind power projects could potentially harm animals and the environment, including loss or degradation of habitat, disturbance and resulting dislocation from habitat, and disruption of particular activities for certain species, including travel for feeding, migration, and nesting purposes.

Conservation organizations and other concerned parties have begun bringing suits across the country against wind energy developers in an effort to curb the negative effects on wildlife. For instance, in Animal Welfare Institute v. Beech Ridge Energy LLC, 675 F. Supp. 2d 540 (D. Md. 2009), a coalition of nonprofit organizations filed suit against Invenergy’s Beech Ridge wind power project in West Virginia. The plaintiffs argued that the project would violate the Endangered Species Act by unlawfully “taking” endangered Indiana bats by inevitably injuring, killing, or otherwise harming them through the construction and operation of the turbines. The United States District Court of Maryland agreed, granting the plaintiffs’ request for a preliminary injunction, requiring the defendants to discontinue the project until they have acquired an incidental take permit from U.S. Fish and Wildlife Service.

But there are methods for curbing the negative effects of wind turbines while still reaping the benefits of this green energy source. Daulton’s congressional testimony emphasized the significance of the location of wind farms, stating “Impacts to birds, bats, and other wildlife from wind projects can be largely avoided if the most important habitat areas are not developed,” taking into consideration areas that serve as migration routes or gathering places for large numbers of species of birds or bats. Daulton also advocated for mandatory federal guidelines, as these projects are mainly handled at the local and state level, leaving decisions up to agencies that often lack experience with siting wind turbines and making it difficult to assess regional impacts. Researchers are also developing solutions to this problem, such as radar technology that detects the approach of flocks of migratory birds and temporarily shuts down the turbines, as well as painting the wind turbines purple, a color that seems to attract fewer insects than the usual white turbines. Additional pre-project studies could provide other effective means for preventing our attempts to reduce the effects of global warming from actually having negative environmental ramifications.

–Caitlin Zittkowski is an editor on MJEAL

In March of this year, the governors of both Iowa and Utah signed into law statutes that criminalize various aspects of undercover investigations of farms. Both laws penalize obtaining employment on a farm under false pretenses; in addition, the Utah law also makes it a misdemeanor to take photographs or make recordings on farms without permission from the owner. These laws are just two in a wave of “ag-gag” bills introduced in several states, including Minnesota, Missouri, Nebraska, New York, and Tennessee. Ag-gag bills were also introduced in Florida and Illinois, where they were defeated. Already faced with significant obstacles to regulating the agriculture industry, which contributes significantly to environmental degradation, environmentalists are concerned about clearing yet another hurdle while working to promote more environmentally sustainable farms.

Proponents of such bills, including Iowa State Senator Joe Seng, who sponsored the Iowa bill, argue this legislation would provide a much-needed shield for farmers against those intending to harm agricultural business. Senator Seng states that agriculture is an important industry in Iowa, and this law is “a protection mechanism that’s saying we do not want to put up with this in our state.”Ag-gag bill supporters also claim that these undercover investigations inaccurately portray farming,“fabricating things that are not happening on a regular basis.”

Critics of ag-gag bills include animal protection groups, such the Humane Society of the United States, whose undercover investigations have led to animal abuse charges and food recalls, as well as prosecutors’ organizations like the Association of Prosecuting Attorneys (APA) and the National District Attorneys Association (NDAA). These groups point out that ag-gag bills make the agricultural industry, which already lacks sufficient public visibility and regulation, even more opaque. They deprive the public of information and divest concerned citizens and public interest groups of an effective enforcement tool that has acted as a catalyst for new federal regulation of the agricultural industry. Some of the proposed bills also contain overly broad language, criminalizing not only the undercover investigation itself but also the possession of the photos or videos taken on the farm without explicit permission.

Besides raising red flags for those concerned with protecting animals, ag-gag bills should also pique the interest of those concerned with protecting the environment. Although these bills typically include exceptions for law enforcement officials and inspectors, farms already enjoy wide exemptions from environmental regulations and statutes despite their extensive effects on the environment, ranging from water and air pollution to habitat degradation. See J.B. Ruhl, Farms, Their Environmental Harms, and Environmental Law, 27 Ecology L.Q. 263, 263 (2000). Because there is no unified federal statute that expressly regulates the environmental impacts of farms, and most states have also chosen not to regulate these environmental harms as well,any regulation that takes place must be pieced together through other statutes, such as the Clean Water Act (CWA) and Clean Air Act (CAA).Id. at 293.But these statutes contain many express and implied exemptions for farms. For example, the CWA’s wastewater permit program for point sources was amended to exclude “return flows from irrigated agriculture,” Clean Water Act of 1977, Pub. L. No. 95-217, § 33(b), 91 Stat. 1566, 1577 (1977) (codified at 33 U.S.C. § 1362(14) (1994)), and the CAA contains de minimus discharge exceptions typically applied to farms that allow them to escape regulation. Ruhl, supra, at 305.

In an industry already only minimally constrained by regulation from negatively impacting the environment, ag-gag laws could make it even more difficult to enforce what little law exists. Such laws could severely hinder the collection of evidence of environmental regulation violations, especially by dissuading those with valuable information from coming forward to the government or public interest groups for fear of harsh punishments.Furthermore, similar protection from public scrutiny and whistle-blowers could spread to other industries with extensive environmental impacts whose lobbyists effectively manage to curry favor with legislators.

—-Caitlin Zittkowski is a Contributing Editor for MJEAL.  She can be reached at czittkow@umich.edu.