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Published in Michigan Environmental Law Journal, Fall 2020, Vol. 38, No. 1, Issue 108 [view full issue].
Cite: 38 Mich Env Law J 1 (2020)

by Randall S. Abate^[1], Professor, Monmouth University

Published in July, the second edition of What Can Animal Law Learn From Environmental Law? (hereinafter the Book) (Environmental Law Institute Press, 2020) features significantly expanded coverage of what animal law can learn from environmental law in many contexts and how the two fields can work together to secure mutual gains. The book updates and builds on the existing coverage of topics from the 17 chapters in the first edition and adds 12 new chapters on cutting-edge topics including lab-grown meat, animal testing, “tag-gag” litigation, deceptive advertising, climate change, right of nature, impact assessments, enforcement, regulatory avoidance, and “animal socioequality.”

The U.S. has a long history of exploiting animals for human advancement and comfort in much the same way that natural resources have been exploited since the industrial revolution. The environmental movement in the United States in the 1960s and 1970s demanded that the use of natural resources be carefully managed to ensure a sustainable future for our nation and our planet. In the five decades during which it has been recognized as a specialty area in U.S. law,^[2] environmental law in the United States has been highly successful in promoting this sustainable management objective. Drawing support from both legal and social developments in the late 1960s and early 1970s, environmental law quickly moved within its first decade from a marginal niche to a fully institutionalized field in the American legal system.

There are many reasons for this success. First, there was an urgent and visible pollution crisis in our air, water, and land. Second, economic stability in the 1960s and 1970s enabled the United States to regulate the environment in a manner that would have been economically challenging in previous decades. Third, scientific evidence had been collected to establish direct links between environmental contamination and human health. Fourth, growing awareness of the importance of ecosystem integrity and biodiversity led to protection of the “unseen” and “overlooked” in our natural world, which gained national attention in the Tennessee Valley Authority v. Hill case in 1973, involving protection of the snail darter under the Endangered Species Act.

In addition to these reasons for the environmental law movement’s success, the most important reason that environmental law became mainstreamed as a legal specialty is because it worked within the system rather than against it. While there were, and still are, many radical environmental groups and objectives that challenge the status quo of the legal system, the vast majority of environmental law issues acquired legitimacy through victories in the courts and in Congress. Ultimately, environmental law succeeded because its message was understood that protecting the environment ensures a sustainable future for humans. Many environmental law regulations are premised on enforcing standards that seek to protect human health.

While animal law has enjoyed some important victories within the past three decades in the courts and in federal and state legislative initiatives,^[3] it has remained largely marginalized in the American legal system and has struggled for legitimacy. Much of this struggle is rooted in a false perception in the legal system and in society regarding what animal law represents—that enhancing legal protections for animals somehow requires a corresponding diminution of legal protections for humans.

To secure enhanced legitimacy and success, the animal law field needs to capitalize on the successful strategies of the environmental law field. In much the same way that the American public has grappled with the knowledge that economic growth does not require unsustainable depletion of natural resources, our increased demand for food, scientific research, and entertainment likewise should not require animal suffering. Moreover, animal law can work directly with environmental law on some issues for mutual benefit.

The Book seeks to address several dimensions of this inquiry. It raises important parallels between animal law and environmental law and proposes strategies for how animal law can benefit from the well-worn trail that environmental law has blazed in the legal system. Some key similarities include:

• Both fields involve defending those unable to defend themselves in the legal system (e.g., mountains, rivers, trees, and animals).
• Both fields involve the need for creative lawyering (e.g., drawing on a mix of statutory and common law theories) to develop new theories of protection under the law.
• Both fields must confront issues of federalism and avoid the pitfall of preemption as a limitation on the scope of available protections.
• Both fields benefit from cross-disciplinary engagement with other doctrinal areas (e.g., human rights) and with foreign domestic and international law principles to advance new theories of protection.
• Both fields must confront how best to define their focus and may benefit by defining goals for mutual gain. For example, environmental law is routinely paired with natural resources law, energy law, and land use law. Animal law is related to environmental law to a similar degree as these fields; however, it is rarely paired with environmental law as a joint enterprise.
• “Think globally, act locally” is an appropriate mantra for both fields, yet it has galvanized environmental law’s success much more so than it has for animal law. Environmental law issues are inherently international because of their transboundary nature, whereas animal law issues are intertwined with cultural and religious traditions that tend to make them more national and local in character.

Progress for Animal Law

Since the publication of the first edition of the Book in 2015, animal law advocates have secured landmark victories in three high-profile contexts—SeaWorld, the Circus, and Pet Custody laws. Longstanding traditions of captive breeding of orcas at SeaWorld and training of elephants for performance in Ringling Bros. and Barnum and Bailey circus came to an end within the same year in 2016, thanks to persistent and creative litigation, legislative, and public information campaigns.^[4] While these developments did not intersect directly with environmental law on the surface, they built on a legacy of advocacy strategies that were successful in environmental law in previous decades: (1) the power of advocacy based on science and public information campaigns in the case of SeaWorld, and (2) the power of grassroots advocacy at the local level to secure a nationwide outcome in the case of the circus, which relied on a patchwork of local bans in multiple states on the use of the bullhooks used to train elephants.^[5] In the companion animal context, California enacted a groundbreaking pet custody law in 2018 that authorizes judges to consider what is in the best interests of companion animals in custody disputes, which elevates animals’ status above their traditional recognition as property.^[6]

In other animal law contexts since the release of the first edition of the Book, animal rights advocates continued the ambitious and important quest for recognition of legal personhood protections for animals. High-profile cases filed by three of the leading animal protection organizations in the nation used creative strategies intended to secure a common goal in the animal law and environmental law movements: legal personhood for these “voiceless” entities (i.e., animals and natural resources) to be recognized as rights holders to some degree under the law. The first of these cases, Naruto v. Slater,^[7] also known as the “monkey selfie” case, involved People for the Ethical Treatment of Animals’ (PETA’s) suit on behalf of a crested macaque monkey in Indonesia, Naruto, to secure intellectual property rights to selfie photos that the monkey had taken with a photographer’s camera that was set up on a tripod in an Indonesian rainforest. The Copyright Act extends protections to any “person,” which is not limited by its terms to humans under the statute. The Court concluded that “person” should not be interpreted to include non-humans and that Naruto therefore lacked statutory standing under the Copyright Act.^[8]

Second, the Nonhuman Rights Project (NhRP) also proceeded undaunted with its line of habeas corpus cases that began prior to the first edition and continued through to the publication of the second edition of the Book.^[9] These cases have sought to have chimpanzees and elephants released from captivity and placed in sanctuaries. The most recent of these cases involved Happy, a 49-year-old Asian elephant in captivity at the Bronx Zoo.^[10] Happy’s case is the first in the world for a court to issue a habeas corpus order on behalf of an elephant.^[11] The “show cause” order required the Bronx Zoo to justify its ongoing confinement of Happy. In February 2020, the NhRP’s case was dismissed,^[12] but NhRP continues to pursue litigation and legislative initiatives in the U.S. and abroad to secure legal personhood protections to recognize these animals’ rights to be free from confinement.

In the last of this trio of legal personhood cases on behalf of animals, the Animal Legal Defense Fund (ALDF) filed a high-profile case on behalf of Justice, a horse, in a suit against the horse’s owner for abuse under Oregon’s animal cruelty statute. The suit seeks to establish that animals have a legal right to sue their abusers in court. The case was dismissed in 2018 on the ground that non-human animals lack standing to sue on their own behalf.^[13] ALDF’s appeal of the dismissal was pending at the time that the second edition of the Book was published.^[14]

Building on the momentum from these landmark victories and creative and ambitious litigation strategies in the animal law field since 2015, animal protection initiatives can be enhanced by learning valuable lessons from environmental law in certain contexts, and by seeking collaboration with environmental law on certain issues for mutual gain. New chapters in the second edition of the Book address how two contexts from the environmental law field – rights of nature and environmental justice – serve as foundations for potential future gains for animal law. One chapter presents an Australian perspective on how recent successes in rights of nature initiatives can provide an opportunity for animal law and environmental law to secure mutual gains through a “comprehensive ecosystem personhood” approach. Another chapter coins a new term, “animal socioequality,” as an innovative approach to enhance protection for animals through an environmental justice lens.

The Intersection between Animal Law & Environmental Law

Developments at the intersection of animal law and environmental law have exploded since the publication of the first edition of the Book in 2015. The second edition addresses some of these developments to build on some of the existing content from the first edition and extend the book’s coverage in new directions. One of these developments is food law and policy as a rapidly growing area of convergence between these two fields. In adding new chapters addressing how food law and policy can enhance protection of animals, the second edition builds on the first edition’s coverage of one dimension of this topic addressed in the meat labeling chapter. New chapters in the second edition extend the coverage of food law and policy issues to include consumer protection litigation involving false advertising claims, potential synergies between greenwashing and humane washing contexts, and animal and environmental law and policy considerations concerning lab-grown meat.

Another area of convergence between animal law and environmental law is climate change regulation. The first edition of the Book addressed this topic with two chapters: one proposed strategies to address greenhouse gas emissions from concentrated animal feeding operations (CAFOs), whereas the other addressed how the listing of the polar bear as threatened under the Endangered Species Act can offer lessons for enhanced protection of wildlife. The second edition adds two new chapters that address climate change as common ground between these two movements. One of these chapters considers synergies between climate change mitigation and wildlife conservation and the other seeks to build on the environmental law movement’s ambitious use of the public trust doctrine to leverage enhanced protections for wildlife.

The first edition’s core theme regarding lessons that environmental law can offer animal law extends in new directions in the second edition. The second edition adds new chapters addressing procedural contexts in which environmental law has enjoyed enduring success in enforcement of law generally, impact assessments, and accountability for regulatory avoidance. It also includes a chapter on what animal law can learn from environmental law to promote animal protection in the context of animal testing.

Successful demand reduction strategies are perhaps the most effective and most promising of all of the developments since the publication of the first edition of the Book. Demand reduction strategies can enhance animal protection more readily than litigation or legislative initiatives. Animal law and environmental law embrace demand reduction efforts through public information campaigns and science. In environmental law, this approach is reflected in efforts such as fossil fuel divestment, anti-fracking campaigns, and renewable energy initiatives to help move the public away from its addiction to fossil fuels. In animal law, demand reduction strategies take many forms because animals are considered property under the law and are abused in multiple contexts such as animals in agriculture and animals in entertainment. Examples of effective demand reduction advocacy occurred in the animals in entertainment context with recent victories against circuses and marine parks, in addition to previous victories against the dog fighting and dog racing industries.

The rapid expansion of the plant-based meat and dairy industries since 2015 promises significant gains in animal protection by threatening the stronghold of the meat and dairy industries. The walls of this fortress of secrecy and abuse in the meat and dairy industries have continued to crumble in the years since the second edition of the Book, and at a much faster rate. Plant-based meat and milk have caused massive economic impacts to the meat and dairy industries such that some major dairy producers have filed for bankruptcy. Feeling this pressure, the meat industry has fought back by transitioning from one unsuccessful form of bullying tactics (“ag-gag” laws^[15] seeking to stifle public information access and dissemination) to a new form of bullying with a recent wave of new “tag-gag” laws.^[16] One example of these state tag-gag laws is the meat industry’s attempt to limit the definition of the term “meat” to animal flesh for consumption in an effort to exclude the competitive threat from the plant-based meat industry’s use of that term. These tag-gag laws have been challenged by animal protection advocates in a wave of pending litigation that offers a sense of déjà vu when one compares it to the ag-gag litigation that preceded it.

Listen to the Experts

The Book assembles the insights of 36 experts in the animal law and environmental law fields to promote legal protections for animals by drawing on U.S., foreign, domestic, and international environmental law regulatory strategies and perspectives. The Book is divided into four units. Unit I provides introductory context with seven chapters that thoroughly examine the historical, political, and legal foundations of environmental law as possible building blocks (and pitfalls to avoid) in seeking to advance the animal law field. Sub-topics within this unit address procedural mechanisms (standing, enforcement, damages, and impact assessments) and concepts and themes (politics of the environmental law movement, regulatory avoidance, and animal socioequality) to set the stage for Book’s coverage in the ensuing three units.

Unit II addresses several U.S. law contexts to illustrate these lessons from environmental law and possible opportunities for collaboration between the two movements. These contexts include chapters on animal agriculture, consumer protection and labeling, emerging issues in food law and policy, climate change, lead pollution, fisheries management, and animal testing. Unit III considers these issues from international and comparative law perspectives. It reviews international trade and environment treaties and jurisprudence, environmental and animal welfare regulation in Australia and the European Union, and the need for regional and global animal welfare and rights laws to emerge to capitalize on the success and avoid the failures of the international regulation of species under environmental law regimes. Unit IV offers reflections in four chapters on how animal law can learn from environmental law in practical and theoretical contexts, and how the two fields can enhance their collaborative efforts for mutual gain.

A famous quote from Gandhi on the progression of social movements is particularly apt in reflecting on the future of animal law: “First they ignore you, then they laugh at you, then they fight you, then you win.”^[17] With the help of lessons from environmental law, and drawing on opportunities for increased collaboration between animal law and environmental law, animal law can close in on a “win” that will hopefully be a “win-win” for these two fields.

^[1] Professor and Rechnitz Family and Urban Coast Institute Endowed Chair in Marine and Environmental Law and Policy; Director, Institute for Global Understanding, Monmouth University. Prof. Abate is the editor of WHAT CAN ANIMAL LAW LEARN FROM ENVIRONMENTAL LAW? (ELI Press, 2020). This submission is adapted from the prefaces to the first and second editions of the book with permission from the Environmental Law Institute.

^[2] The early 1970s are widely regarded as the beginning of environmental law as a specialty field with the convergence of events such as Earth Day; Sierra Club v. Morton 405 U.S. 727 (1972); passage of major federal environmental laws such as NEPA, the CAA, the CWA, and the ESA; and the establishment of several environmental law journals at American law schools.

^[3] See infra notes 4 and 6 and accompanying text.

^[4] Jennifer Hackett, SeaWorld Ends Controversial Captive Breeding of Killer Whales, Sci. Am., (Mar. 17, 2016); see also Faith Karimi, Ringling Bros. Elephants Perform Last Show, CNN.com, (May 2, 2016).

^[5] For a discussion of some compelling parallels between the enactment history of the Clean Air Act and the use of local bans on bullhooks to secure the victory against Ringling Bros. circus, see Chapter 13 of the Book.

^[6] Dareh Gregorian, New California divorce law: Treats pets like people—Not property to be divided up, NBC News.com, (Dec. 29, 2018).

^[7] 888 F3d 418 (9^th Cir 2018).

^[8] Id. at 426. Despite the loss in court, there was some good news for Naruto and the animal protection advocates in the wake of the litigation. After oral arguments before the Ninth Circuit, however, the parties agreed to a settlement that provided that 25 percent of the proceeds from the photographer’s sales of the monkey selfies would be donated to charities that seek to protect the habitat of the crested macaques in Indonesia. See Nicole Pallotta, En Banc Review Requested in “Monkey Selfie” Copyright Case, Animal Legal Defense Fund Animal L. Update, (Aug. 7, 2018).

^[9] For a summary of the chimpanzee cases, see Courtney Fern, The Need for Chimpanzee Rights, Nonhuman Rights Blog, (July 13, 2019).

^[10] For a helpful discussion of the context and controversy surrounding this case, see Brandon Keim, An Elephant’s Personhood on Trial, The Atlantic, (Dec. 28, 2018).

^[11] Laura Choplin, World’s First Habeas Corpus Order Issued on Behalf of an Elephant, Nonhuman Rights Blog, (Nov. 19, 2018).

^[12] Sophia Chang, Judge Rules That Bronx Zoo’s Happy the Elephant Is Not “Unlawfully Imprisoned,” Gothamist, (Feb. 20, 2020).

^[13] Aimee Green, Oregon judge refuses to be first in the nation to let animals sue, The Oregonian, (Jan. 29, 2019).

^[14] Press Release, Animal Legal Defense Fund Appeals Dismissal of Groundbreaking Lawsuit for Abused Horse, (Jan. 22, 2019).

^[15] ALDF has been remarkably successful in challenging asnd defeating several ag-gag laws. See generally Issue: Ag-Gag Laws, Animal Legal Defense Fund.

^[16] Tag-gag laws seek to prevent plant based products from using terms such as “meat” and “milk.” For a detailed discussion of laws and pending litigation in this context, see Chapter 11 of the Book.

^[17] For a helpful reference to this quote and its relationship to the plant-based meat revolution, see Rowan Jacobsen, This Is the Beginning of the End of the Beef Industry, Outside, (July 31, 2019).