What Is Animal Law?
Animal advocates may occasionally hear about attorneys or organizations that specialize in “animal law.” But what is animal law, exactly? Unlike more traditional areas of law like criminal law or contract law, “animal law” is not defined by a specific set of statutes but rather by the facts to which the law is applied. Any area of law, from constitutional law to contracts, can fall under the umbrella of “animal law” if the specific case in question impacts animals.
Sometimes, animal lawyers can use the law to help animals directly, such as by using anti-cruelty laws to save animals from situations of abuse or neglect. But more often, animal law attorneys need to find creative ways to help animals, given the overall lack of adequate legal protections for our nonhuman friends. This article will explain some of the ways the law is used in the practice of “animal law.”
Animal Protection Statutes
Though few and far between, there are a number of laws on the books that protect animals directly. For instance, all 50 U.S. states have laws criminalizing animal abuse and neglect. There are also federal statutes such as the Endangered Species Act, the Marine Mammal Protection Act, the Humane Methods of Slaughter Act, and the Animal Welfare Act, among several others, that offer some degree of protection to certain animals in certain contexts. Unfortunately, there are gaping loopholes in each of these laws, and even in situations where they apply, enforcement is often lacking.
For instance, animals raised for food are exempt from state anti-cruelty laws to the extent that their treatment constitutes generally accepted animal husbandry practices. This means a farmer can lawfully confine or mutilate a cow or a chicken in ways that would be a crime if done to the family dog or cat, so long as the confinement or mutilation is “generally accepted” in the agriculture industry. In this way, animals raised for food are only protected from the most egregious forms of abuse and neglect. And even then, lack of enforcement is a problem.
Similarly, the Humane Methods of Slaughter Act does not apply to chickens, turkeys, or other poultry, meaning 98% of the animals slaughtered for food in the U.S. are unprotected. The Animal Welfare Act does not apply to rats, mice, or birds used in research (which comprise 90% of the animals experimented on). The Marine Mammal Protection Act Marine contains a loophole for commercial fishing operations, which regularly capture dolphins and other protected species as bycatch. And so on, and so forth. In sum, these so-called animal protection laws, while still important, do not go nearly far enough to provide direct legal protections to animals.
Animals As “Property”
Further complicating matters is the fact that animals are considered personal property under the law, just like your TV or your kitchen table. (In law, there are only two categories – “persons” and “property” – with the latter having no legally recognized rights of their own.) This dual system is problematic when it comes to animals, since there are, of course, several very important differences between your cat and your television set! Yet both are considered your property.
Unlike your TV, your cat has their own interests (generally speaking, to avoid pain and to seek happiness). Your TV has no such interests, making it perfectly reasonable to call it property – the category of things that exist solely for the interests of their human owners. Your cat, on the other hand, has interests separate and apart from your interest in them. But as property, your cat lacks legal standing, and (with very limited exceptions in certain states) no one can step in and sue on their behalf. In this way, the property status of animals leaves them extremely vulnerable to all sorts of legally irremediable exploitation, abuse, and neglect.
This is why the field of animal law is so broad, spanning so many areas of traditional law. The extensive loopholes and poor enforcement of animal protection laws, compounded by animals’ legal status as property, has forced animal lawyers to get creative by applying non-animal-related laws to help animals through the legal system. What follows is a brief description of some of the more common “animal law” practice areas that use conventional statutes and legal doctrines to vie for animal-friendly outcomes.
Animal law is sometimes seen as a subcategory of environmental law, in the very general sense that it involves legal advocacy for the protection of nonhuman life. The most obvious overlap in the fields of animal law and environmental law is the area of wildlife protection. For example, laws like the National Environmental Policy Act can be used to challenge government actions that have the potential to harm wild animals (usually by polluting or destroying their habitat). When environmental laws are used to protect individual wild animals, it becomes a practice of animal law.
In addition to wildlife protection, environmental laws are often used to advocate for factory-farmed animals – albeit indirectly. Factory farms are the intensive, industrialized, confined animal feeding operations that dominate animal agriculture in the developed world. Animal advocates have an interest in challenging the factory farming model because of the extreme animal suffering involved. Because all the routine practices that cause suffering to farmed animals are legal (due to the loopholes in state anti-cruelty laws described above), these practices cannot be directly challenged in court. However, the practice of cramming animals together in extremely crowded conditions can be challenged in some instances due to the massive amounts of waste all those animals produce, which threatens to contaminate surrounding waterways and ecosystems. Environmental laws protecting air and water can thus serve as a check on factory farming, though unfortunately those protections are not nearly strong enough to end the model entirely.
Consumer Protection Law
Consumer protection statutes – in particular, laws against deceptive advertising and marketing – allow animal advocates to litigate issues related to the treatment of farmed animals in court, even though their poor treatment is, unfortunately, often entirely legal. A company’s factory farming practices can nevertheless present grounds for legal liability if combined with false or misleading marketing claims related to the “humane” treatment of its animals.
Animal advocates use the term “humane-washing” to describe the use of words and/or images which paint a far rosier picture of the way farmed animals are treated than they actually are in a company’s supply chain. Common examples of humane-washing include the use of unregulated phrases like “humanely raised” or “high animal welfare,” or images of animals outdoors in spacious green fields. Sellers of meat, dairy, and egg products use these misleading representations in their marketing materials because they know consumers are concerned about the way farmed animals are treated, even though such images and terms bear little resemblance to the reality of their lives.
By challenging these marketing claims as deceptive, animal law attorneys can help to increase transparency in the animal agriculture industry. Humane-washing hides the truth about factory farming and undermines the work of advocates who are putting tremendous resources into educating consumers about the truth of factory farming. This is why removing these deceptive claims from the marketplace is so important – consumers themselves will be more motivated to demand change or to reduce animal products in their own diets if they stop believing these false representations. For this reason, litigating to remove such misleading claims from the marketplace is broadly considered a form of animal protection law.
Animal exploitation industries have extremely powerful lobbyists on their side, constantly working the halls of legislatures and regulatory agencies to influence law and policy in favor of animal producers. When it comes to actions by regulatory bodies, there are certain procedures that must be followed – for instance, procedures designed to ensure the agency has properly considered all the relevant evidence on the topic, or to ensure it is not exceeding the power given to it by the legislature. When an agency fails to follow the proper rulemaking procedures or acts outside of the bounds of its authority, those who are affected by the agency’s decision can sue to overturn it. Since industry lobbyists are constantly trying to get agencies to change regulations in their favor (often to the detriment of animals in agriculture, zoos, laboratories, and in the wild), administrative law has become a key practice area within the field of animal law.
A perfect example of this is the meat industry’s ongoing push to allow for increased slaughterhouse line speeds. (Faster line speeds = more animals killed = more profits.) The USDA, which sets caps on line speeds, is under tremendous pressure to raise those caps (or, in the case of pig slaughter, eliminate them altogether). Facing industry pressure, the USDA announced in 2019 it was going to do just that – eliminate caps on the number of pigs that can lawfully be killed per hour – and animal protection groups responded by suing the agency under the Administrative Procedure Act. At the time of this writing, that case is still pending.
State Common Law
Some animal law attorneys are attempting to challenge the problematic property status of animals by bringing creative legal arguments for animal “personhood” under state common-law doctrines. The “common law” is a body of judge-made law (as opposed to statutory law made by legislators); it is a concept that comes from the English legal tradition (on which the American legal system is based). Some of the common-law doctrines attorneys are using to argue that animals should be considered legal “persons” (and thus should have certain legally recognized rights) include the writ of habeas corpus and the common-law tort of negligence per se. The common law offers endless flexibility, which makes it an attractive option for animal law practitioners seeking to fashion an entirely new legal and social paradigm for animals in our society.
Although animals themselves have no constitutional rights, animal advocates rely heavily on certain aspects of the U.S. Constitution – especially the First Amendment – in order to advance the interests of animals through their advocacy. In addition to protecting the right to protest, the First Amendment has protected against certain states’ attempts to outlaw undercover investigations of factory farms and slaughterhouses. These laws – commonly called “ag-gag” laws for their aim of gagging whistleblowers in the animal ag industry – have been passed in ten states. But thanks to the work of various animal law attorneys, the majority of these ag-gag laws have been struck down as unconstitutional violations of the freedom of speech.
The field of animal law is not merely a plaintiffs’-side practice area, though all the areas discussed so far have been examples of how the law is used by advocates to go on the offensive, e.g., to proactively file lawsuits in an attempt to challenge the status quo. There are, however, circumstances where animal advocacy lawyers need to go on the defensive – for instance, to defend individual animal activists charged with crimes for their advocacy, or to defend specific animal protection statutes from industry challenge.
As an example of the latter, there have been multiple lawsuits filed by meat industry trade associations attempting to strike down state laws that restrict the sale within their borders of certain types of products deemed inhumane (e.g., foie gras from force-fed birds, veal from calves confined in tiny crates, or eggs from caged hens). The industry groups challenging these sales bans argue they violate a constitutional doctrine known as the “dormant commerce clause.” To help states uphold these progressive animal-friendly laws, animal protection groups have intervened as defendants in these lawsuits. Using constitutional law principles to protect legislative wins for animals is thus another crucial aspect of animal law.
Any area of law can fall under the umbrella of “animal law” if the law is used in a way that impacts animals. This opens the field of animal law to all types of legal professionals, regardless of their area of expertise. Lawyers from all practice areas can use their skill set to help animals – they just need to get creative.