Why We Need a Federal Animal Protection Agency
July 27, 2020
After years, the U.S. Department of Agriculture (USDA) was recently required by Congress to restore access to Animal Welfare Act (AWA) information that it abruptly deleted from its website in early February 2017. Unfortunately, the newly available information confirms my worst fears: The USDA—which has never done a good job of enforcing the AWA—is abdicating its responsibilities to animals more than ever. Enough is enough: It’s time to create a new federal agency that will take animal protection seriously.
As an animal protection attorney, I’ve represented many clients in litigation against the USDA, but I had never before personally sued the agency. That changed when, in February 2017, the USDA inexplicably removed tens of thousands of animal welfare records from its website. I was then an Animal Law & Policy Fellow at Harvard and I suddenly lost access to the information that formed the basis of my legal scholarship. I joined a coalition of animal-protection groups and sued the agency, asking the court to restore access to AWA-related information.
The Animal Welfare Act
Accountability is important for all federal agencies, but it is especially so in the context of the USDA and animal protection laws. The agency is tasked with enforcing the AWA, which became law in 1966 and sets minimum standards of care for certain animals used in research, exhibition, commercial breeding operations, and transport across state lines for those purposes. I routinely review the agency’s enforcement records because they provide a critical insight into whether animals are being protected as they should.
When Congress first enacted the AWA more than a half century ago, the USDA was adamant that it wanted no responsibility for animal protection. It is indeed odd for an agency whose primary mission includes promoting the use of animals for human purposes to be simultaneously tasked with protecting those animals. Nevertheless, Congress delegated responsibility for enforcing the AWA to the protesting agency.
In the intervening decades, the USDA has become increasingly recalcitrant when it comes to animal protection. The USDA’s own Office of Inspector General (OIG) has determined time and time again that the agency is doing a woefully inadequate job of enforcing the AWA.
Access to information about the agency’s enforcement of the AWA is critical for advocates, scholars, and others to at least be able to hold the agency accountable—and to step in and help animals when the agency has failed them. In an information vacuum, this became virtually impossible.
Rather than addressing our litigation on the merits, the USDA engaged in a series of procedural delay tactics. Thankfully, Congress finally intervened, and late last year it enacted legislation requiring the USDA to restore access to the information it had removed years earlier. My co-plaintiffs and I have been carefully monitoring the agency’s compliance with that mandate.
First, some good news: So far, the agency seems to be complying with the disclosure mandates. With access to this critical information finally restored, we’ve just voluntarily dismissed our lawsuits. But, my review of the information now restored reveals a troubling problem.
The Need for a Federal Animal Protection Agency
The information that the USDA has now been forced to reveal underscores that our animal protection work is just beginning. The newly available information confirms my worst fears: The USDA’s enforcement of the AWA has declined so precipitously during the blackout as to be nearly non-existent.
In fiscal year 2016, before the blackout, the USDA initiated 252 AWA enforcement actions. Nevertheless, in May 2017, the USDA OIG advised that the agency “could make improvements in enforcement and inspection to ensure compliance with the AWA.”
Instead, the agency seems to have given up completely: According to the newly available records, since December 20, 2019—i.e, over the last seven months—the USDA has initiated just two AWA enforcement actions. Given that the agency regulates more than a million animals at more than 10,000 locations, that number is staggeringly low. Indeed, according to a sworn declaration that we recently secured in our litigation, “no settlement agreements have been entered into, or letters of warning issued, since December 20, 2019.” This is especially alarming when one considers that settlement agreements and warnings have long been the agency’s primary means of enforcing the AWA.
The USDA has effectively announced to the thousands of dog breeders, animal experimenters, roadside zoos, circuses, and others that it is supposed to regulate under the AWA that they need not bother with providing even minimum care to animals.
Sadly, the agency’s record on other animal protection statutes, including the Humane Methods of Slaughter Act, is just as appalling. While the AWA specifically excludes farmed animals—indeed there is no federal law protecting animals while they are being raised for food—the USDA is at least supposed to ensure their humane treatment at slaughterhouses. It is failing to do so, and I am currently litigating two lawsuits challenging these failings in my role as Director of the Center for Animal Law Studies’ Animal Law Litigation Clinic. My experience with the USDA in that context has been no more encouraging.
For decades Congress has asked the USDA to ensure at least minimal protections for animals. For decades the agency has failed to honor its duties, while the animals it is charged with protecting continue to suffer. Now we’ve reached the nadir, and we must heed it as a wake-up call: We need a federal agency that takes animals’ interests seriously. We must create a federal Animal Protection Agency.
Delcianna (Delci) Winders is an assistant clinical professor of law at Lewis & Clark Law School, where she directs the Animal Law Litigation Clinic (ALLC)—the nation’s only clinic focused exclusively on animal law litigation and advancing protections for farmed animals. Professor Winders’ animal law and administrative law scholarship has appeared in the Denver Law Review, Florida State Law Review, Ohio State Law Journal, NYU Law Review, and Animal Law Review. She has also published extensively in the popular press, including The Hill, National Geographic, Newsweek, New York Daily News, Salon, and U.S.A. Today.
The Center for Animal Law Studies (CALS) was founded in 2008 with a mission to educate the next generation of animal law attorneys and advance animal protection through the law. With vision and bold risk-taking, CALS has since developed into a world-renowned animal law epicenter, with the most comprehensive animal law curriculum offered anywhere. In addition, CALS is the only program that offers an advanced legal degree in animal law and three specialty Animal Law Clinics, including the Animal Law Litigation Clinic—the nation’s only legal clinic devoted to advancing protections for farmed animals. CALS is a nonprofit organization and is only able to provide these educational opportunities through donations and grants.