Applying Environmental Justice to Factory Farm Animals Elizabeth Overcash Environmental justice is the idea that environmental laws should, but at the current moment do not, protect everyone equally.1 This idea tends to apply only to humans and not to animals. However, environmental justice concerns intersect with animal rights concerns at concentrated animal feeding operations (CAFOs). Living conditions for people in areas surrounding CAFOs are problematic, due largely to the amount of animal waste generated in these facilities. Environmental justice issues arise when CAFOs are sited in low-wealth, minority areas. Today, factory farm animals, including cows, pigs, chickens and other poultry, are the “largest group of animals exploited by the United States.”2 Very few laws protect these animals from inhumane treatment, and those laws that do apply are full of exceptions. Due to the weakness of the laws regulating these animals‟ development and slaughter, factory farm animals are allowed to be kept in highly concentrated confinement areas such as CAFOs. Stricter laws to protect animals could limit the harmful effects of CAFOs, thus improving living conditions for those in the surrounding areas and alleviating environmental justice concerns. In the United States, there has been a shift toward greater confinement of livestock.3 The poor treatment standard in dealing with factory farm animals and the need to produce greater amounts of meat annually to satisfy increasing demand led by the public have turned animals into mere products, and, as products, they are stored as products. In other words, factory farm

1

U.S. Environmental Protection Agency, Environmental Justice, available at http://www.epa.gov/oecaerth/environmentaljustice/ (last visited Dec. 31, 2009). 2 Stephanie J. Engelsman, “World Leader” – At What Price? A Look at Lagging American Animal Protection Laws, 22 PACE ENVTL. L. REV. 329, 332 (2005). 3 Kate Celender, The Impact of Feedlot Waste on Water Pollution under the National Pollutant Discharge Elimination System (NPDES), 33 WM. & MARY ENVTL. L. & POL‟Y REV. 947, 950 (2009).

owners legally can and realistically do crowd masses of animals into small areas of confinement, just as any producer of a material might tightly package his or her product. This shift toward more confinement of factory farm animals has made the waste produced by these animals, 220 billion gallons each year, a significant problem today.4 This problem results from the fact that animals used in the food industry are no longer given the freedom to roam and graze at their own pace in pastures, but rather are typically confined to pens and cages and are fed in large masses in feedlots.5 Large amounts of animal waste are generated at CAFOs by the animals, and, the waste is stored in lagoons and later applied, without being treated, as fertilizer onto land called spray fields.6 These methods of managing animal waste are creating substantial water pollution problems: “Runoff from sprayfields and lagoons may introduce heavy metals, pathogens, antibiotics, pesticides, and ammonia into ground and surfacewater.”7 This runoff not only kills fish, but it also harms human health.8 The waste in the lagoons and spray fields create various hazards. Runoff from the CAFOs pollutes nearby water and increases its nitrate levels.9 Increased nitrate levels present dangers, such as a heightened risk of methemoglobinemia in infants, which can cause developmental deficiencies or even death.10 The high nitrate levels can also cause spontaneous abortions.11 Increased nitrate also creates surplus algae growth, “which chokes out nutrients and sunlight needed by fish and grasses.”12 By harming the plant and animal life, the nitrate levels also

4

Id. Id. at 951. 6 Id. at 948. 7 Id. at 949. 8 Id. 9 Id. at 958. 10 Id. 11 Id. 12 Id. 5

decrease the opportunities for human recreation near the factory farms, like fishing.13 Bacteria and viruses in the waste also contaminate nearby waters.14 When the waste is applied to sprayfields, it tends to be applied excessively, to the point that it does not effectively fertilize fields because, due to the massively high number of animals on factory farms, there is so much waste that, rather than fertilizing fields, it just harms crops and wastes nutrients.15 In 1997, chicken waste runoff killed over 50,000 fish after it was applied to a cornfield.16 Smaller farms may be able to use their animal waste as fertilizer, but larger CAFOs, “whose only „crops‟ are animals,” cannot appropriately apply all of their waste as fertilizer to fields.17 Lagoons, which are giant pits filled with liquefied animal waste, tend to rupture and spill into local bodies of water, which contaminates the water and poses risks to public safety by adding sometimes millions of gallons of pollution to the water.18 These lagoons can also proliferate insects such as flies and mosquitoes, which spread disease and threaten the health of livestock and people that live nearby.19 The culmination of all these effects of CAFOs affects the rural communities near the factory farms: “Many studies have confirmed that they cause social problems, including decreased quality of life associated with smells that impinge on outdoor freedom and cause feelings of „violation, isolation, and infringement.‟”20 Factory farms with CAFOs are associated

13

Id. at 959. Id. 15 Id. 16 See Aisha Ikramuddin & Leila Mead, Slaughterhouse 5: Farming of Meat and Poultry, NAT‟L GEOGRAPHIC GREEN GUIDE, Mar. 1, 1998, available at http://www.thegreenguide.com/doc/51/slaughterhouse. 17 Celender, supra note 3, at 960. 18 Id. 19 Id. 20 Laura Bucher Murphy, CAFO Grief: Using Tax Grieving Procedures to Protest Industrial Animal Factories, 23 J. ENVTL. L. & LITIG. 357, 360 (2008). 14

with increased “stress, sociopsychological problems, and teen pregnancies.”21 People who live near CAFOs have more mental health problems, such as tension, depression, anger, confusion, and fatigue.22 Furthermore, although CAFOs are said to benefit the local economy, the effect that they have on nearby residents seems to suggest that they do not.23 CAFOs tend to hire migratory workers at low wages, which makes it difficult for residents to compete for jobs.24 In addition to having low pay wages, factory farms minimize the number of workers they hire and do not tend to buy locally; thus, they tend to not contribute substantially to the local economy or tax bases, while at the same time they present a drain on the local economy by increasing taxpayers‟ expenses, such as for road repair.25 These farms can decrease the property values of people who live near the farms.26 As a result, long-time citizens are forced to move and family farms shut down.27 In some states, such as North Carolina and Mississippi, CAFOs are often located in poor or African American communities, creating issues of environmental justice.28 In North Carolina, for example, there are 7.2 times as many swine CAFOs located within the areas of highest poverty as compared with the areas of lowest poverty.29 Furthermore, in the same state, there are about five times as many swine CAFOs in areas with the highest percentage of nonwhite population as compared to areas with the lowest percentage of nonwhite population.30 These lower income communities are already at a social disadvantage, and, instead of being protected

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Id. Celender, supra note 3, at 961. 23 Id. at 960. 24 Id. 25 Murphy, supra note 20, at 360. 26 Celender, supra note 3, at 960. 27 Id. 28 Carol J. Hodne, Concentrating on Clean Water: The Challenge of Concentrated Animal Feeding Operations, IA POLICY PROJECT, Apr. 2005, at 28, available at http://www.iowapolicyproject.org/2005docs/050406-cafo-fullx.pdf. 29 Id. 30 Id. 22

by environmental laws, these communities are harmed further by the waste from factory farms, creating inequitable health and socioeconomic burdens.31 Since these communities are more likely than others to rely on well water and to have barriers to medical care access, their health problems are intensified.32 Factory farms also create air and water problems in the communities near them, such as contaminated well water and toxic air emissions, which affect both the mental and physical health, as well as the property value, of those who live closest to factory farms.33 The farms additionally produce noxious odors that infringe on the neighbors‟ enjoyment of their own land.34 One New York resident living near a factory farm summed up some of the detrimental effects of living near the farm: The roads get wet with liquid manure, it dries and with the heavy traffic, becomes a fine dust that enters our home, our barn, our cars, and our lungs. Mowing the lawn, tending to our few animals or trying to garden is usually a “noxious affair,” after which we are sometimes sick with respiratory illnesses, headaches, and even dizziness and nausea. Swarming flies are also in abundance where we live. Even if the smell doesn‟t get us if we try to BBQ, the flies will swarm our food on a really busy spreading day.35 Thus, factory farms reduce property enjoyment, making surrounding lands less desirable places to live. In combination with their environmental and health costs, factory farms and CAFOs as a whole are detrimental to local economic development.36 Animal Protection Laws An examination of the major animal protection laws in the United States shows the lack of protection provided to factory farm animals. The Animal Welfare Act, created in 1970, is one

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Id. Id. 33 Murphy, supra note 20, at 360. 34 Id. at 362. 35 Id. 36 Id. at 360. 32

of the major sources of protection for animals in the United States today, yet it only covers animals used for “research, testing, experimentation, or exhibition purposes, or as a pet.”37 The Act does not include farm animals because it exempts, among other animals, “livestock or poultry, used or intended for use as food or fiber.”38 Due to the Animal Welfare Act‟s farmanimal exemption, it specifically exempts the over ten billion animals killed yearly on factory farms.39 Left without protection, these animals may be treated in whatever way is most efficient for factory farm operators, which allows for the mass confinement and feedings of CAFOs. The Humane Slaughter Act, enacted in 1958, states that “no method of slaughtering or handling in connection with slaughtering shall be deemed to comply with the public policy of the United States unless it is humane.”40 What this Act means by “humane slaughtering” is that “before being shackled, hoisted, thrown, cast, or cut,” all “cattle, calves, horses, mules, sheep, swine, and other livestock […] [be] rendered insensible to pain by a single blow or gunshot or an electrical, chemical or other means that is rapid and effective.”41 The Humane Slaughter Act has an exemption for “the ritual requirements of the Jewish faith or any other religious faith that prescribes a method of slaughter whereby the animal suffers loss of consciousness by anemia of the brain caused by the simultaneous and instantaneous severance of the carotid arteries.”42 This exemption includes the rituals of Judaism and Islam, where the animals are lifted up by one or both of their back legs and, while hanging upside down, their throats are cut, causing them to bleed to death for up to eight minutes.43 While the bleeding to death alone is painful, the animals,

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7 U.S.C. § 2132(g) (2006). Id. at § 2132(g)(3). 39 Engelsman, supra note 2, at 332. 40 7 U.S.C. § 1901 (2006). 41 Id.at § 1902(a). 42 Id. at § 1902(b). 43 Engelsman, supra note 2, at 334. 38

conscious and frightened, tend to kick and thrash, causing them to break their bones and tear ligaments.44 The meanings of the term “other livestock” in the Humane Slaughter Act is debated, and the United States Department of Agriculture has defined the term so that it does not include chickens and or other poultry,45 which make up over 92 percent of the ten billion animals slaughtered annually in the United States.46 These birds are killed, without being rendered insensible to the pain, by various means that can reasonably be said to cause a significant amount of pain, such as being immersed in boiling water.47 Thus The Humane Slaughter Act does not protect from painful slaughter 92 percent of all animals killed for food in the United States every year. Furthermore, the Humane Slaughter Act covers only animals killed at federally-inspected, non-ritual slaughterhouses, not state-inspected slaughter facilities.48 Most meat comes from federally-inspected slaughterhouses; in 1992, federally-inspected slaughterhouses accounted for 97.6 percent of all commercial cattle and hog slaughter.49 As a whole, then, the Act only covers non-poultry animals killed at federal, non-ritual slaughterhouses.50 As in the Animal Welfare Act, there is virtually no protection of factory farm animals in the Humane Slaughter Act, which allows the animals to be produced on a massive scale, thus leading to CAFOs and the waste that inevitably follows.

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Id. 9 C.F.R. § 301.2 (2005). 46 Engelsman, supra note 2, at 335. 47 Id. 48 Id. at 337. 49 Data from the U.S. Department of Agriculture (1997), and Longitudinal Research Database, U.S. Bureau of the Census, available at http://www.ers.usda.gov/publications/aer785/aer785c.pdf. 50 Engelsman, supra note 2, at 337. 45

The Twenty-Eight Hour Law was enacted in 1877 to limit the amount of time that animals could be held without food or water to twenty-eight hours.51 Although scientific research done by the European Commission shows that transporting animals for twenty-eight hours without food or water is too long, the law has not changed.52 Cattle need rest, food, and water after only fourteen hours of transport, and the EU states that this is the maximum amount of time that may still be considered “humane.”53 Still better, though, would be only nine hours, with eleven hours of rest immediately following.54 While twenty-eight hours without food or water is inhumane,55 federal statute allows animals to be confined for thirty-six hours when the owner requests an extension, even though no reason for the extension is needed.56 Additionally, sheep may be legally confined as long as forty-eight hours without food, water, or rest.57 While the lack of protection provided by the Twenty-Eight Hour Law for animals in the food industry seems meager at best, the law has been determined to only apply to transportation by railcar,58 so most animals in the United States, which are transported by truck, are not covered by this law at all and may be held for as long as the owner chooses.59 The Twenty-Eight Hour Law is another law providing only minimal protection for factory farm animals, again leaving factory farm operators free to choose how to treat the animals on their farms. Such an absence of control by law allows farmers to produce large numbers of animals that create the environmental problems in the CAFOs. 51

49 U.S.C. § 80502 (2006). EUROPEAN COMMISSION: SCIENTIFIC VETERINARY COMMITTEE, ANIMAL WELFARE SECTION, REPORT ON THE WELFARE OF INTENSELY KEPT PIGS (adopted Sept. 30, 1997), available at http://www.europa.eu.int/comm/food/fs/sc/oldcomm4/out17 en.pdf. 53 Id. 54 Id. 55 Id. 56 49 U.S.C. § 80502(a)(2)(B) (2006). 57 Id. at § 80502(a)(2). 58 Tuberculosis, Brucellosis, and Paratuberculosis in Cattle and Bison; Identification Requirements, 60 Fed. Reg. 48,362, 48,365 (Sept. 19, 1995) (to be codified at 9 C.F.R. pts 50, 51, 77, 78, 80). 59 Engelsman, supra note 2, at 338. 52

Several states have enacted statutes offering some protection to animals, but these statutes generally include many exceptions: “Eighteen states exempt the practice of slaughtering animals for food,60 with only some states specifying that a humane method of slaughtering should be used.”61 Thirty-six states allow branding, castrating, and dehorning,62 and Iowa and Utah do not consider livestock to be “animals” under their animal protection statutes.63 California, unlike most states, has a humane slaughter act that applies to chickens;64 however, it does not apply to “spent hens,” which are “older chicken hens which are considered too unproductive to retain as egg-layers.”65 This exemption to “spent hens” was upheld in 2003, when two factory farms used wood-chippers to kill 30,000 live “spent” hens.66 The farms were not prosecuted because they did not violate California‟s anti-cruelty laws.67 The poor environmental conditions of the CAFOs follow directly from the poor treatment of the animals on factory farms, which follows, again, from the lack of protection offered to these animals under United States‟ laws. Environmental justice cannot be found in any part of this situation – not in the effects of the CAFOs on the communities surrounding factory farms, nor in the treatment of the animals themselves on the factory farms. The animals face inhumane conditions and a quality of life inferior in quality to that of most other animals in the United States. Similarly, the people face unequal treatment in relation to people not living near factory farms because their homes are devalued, their health is harmed, and in some situations their

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See Pamela D. Frasch et al., State Animal Anti-Cruelty Statutes: An Overview, 5 ANIMAL L. 69, 78 (1999). Engelsman, supra note 2, at 342. 62 Id. at 77. 63 IOWA CODE ANN. § 717B.1(a)(a)(West 2003); UTAH CODE ANN. § 76-9-301(11)(b)(ii) (2003). 64 CAL. CODE REGS. tit. 3, § 1245.2(b) (1994). 65 Id. 66 Press Release, The Humane Society of the United States, DA Declines to File Charges in California Wood Chipper Case (Apr. 17, 2003), available at http://www.hsus.org/farm/news/ournews/archive/california_wood_chipper_case.html. 67 Id. 61

living conditions become so poor that they feel forced to move. Improving the laws regarding factory farm animals could improve these conditions for both the animals and the nearby residents. While there are various justifications for improving the treatment of factory farm animals, a clear one has to be the advancement of environmental justice both among people and among animals themselves.