September 12, 2022 – In a month, the Supreme Court will hear a case regarding an animal cruelty law. It’s not an environmental law case, but the ruling could impact states’ authority to address climate change. Chances are its impact will be limited, but you can never be sure what five judges might decide to do on any given day. Cases involving issues like this are difficult to predict because they tend to blur usual ideological alliances.
National Pork Producers v. Ross involves Prop 12, passed by California voters in 2018. It contains a number of restrictions on factory farming. One of the restrictions prohibits the sale of pork in the state if the sows “lack sufficient space to lie down, stand up, fully extend their limbs or turn around freely.” Specifically, sows should have at least 24 square feet of floor space – not that much considering the average sow is about six feet long and three feet wide (taking up 18 of those square feet) . Meat from the sow or her offspring cannot be sold in California unless this requirement is met.
The problem is that almost all of the pork sold in California comes from out of state. Virtually no sector would meet California’s seemingly modest requirements. Apparently, the typical containment areas for breeding look something like the “tiger cages” of the North Vietnamese. used to punish American prisoners of war. (Sorry, I’m trying to keep this message purely descriptive but it slipped through.) Either way, the question is whether the California ban violates the rights of pork producers to engage in interstate commerce. .
Pork producers have two legal theories. One concerns the so-called doctrine of extraterritoriality. The basic idea is that States cannot adopt rules which have the practical effect of regulating outside their borders. The problem is drawing a line, because many laws in a state as large as California have economic repercussions elsewhere. The other involves what is called the Pike balancing test, which says a state law is invalid if its impact on interstate commerce clearly outweighs the benefits of the law.
The Ninth Circuit rejected the two claims in a long but not very transparent notice. He denied the extraterritoriality claim because the Instate Sales Act applied equally to all producers regardless of location and prohibited only one method of sale. operating profitably rather than directly interfering with trade flow. With respect to the balancing test, he concluded that “these alleged cost increases to market participants and customers do not constitute a substantial burden on interstate commerce for the purposes of the Dormant Commerce Clause.”
Here are the key things that experts will watch for in this case:
- Some lower courts have said that “extraterritoriality” is not the basis for a separate test; it is just a factor in the application of other tests such as the Pike balancing test. Will the Supreme Court retain it as a stand-alone legal theory?
- If it maintains extraterritoriality as an autonomous doctrine, how will the Court define extraterritoriality? The lower courts are all over the map on this one.
- Once a law is qualified as extraterritorial, is there a possible defence? Or gets that “game over” tag.
- The change or even the rejection of the Pike balancing test? Some judges, including Thomas and Scalia, have rejected the legitimacy of this test in previous cases. Will any of the new judges take this view?
If the state loses on the basis of Pike question, it probably won’t mean much because the application of the balancing test is very specific to the facts of each case. A decision on extraterritoriality could be much more meaningful. Many state regulations on climate change have impacts on other states. For example, the Ninth Circuit upheld California’s low-carbon fuel standard against a similar legal attack. Like some other states, California also imposes limits on public purchases of electricity from fossil fuel power plants that apply to out-of-state generators. Depending on the scope of the Court’s definition of extraterritoriality, these and other environmental regulations could be at risk.
The National Pork Producers has some special features. The domestic pork market apparently has some unique characteristics that make it difficult for a producer to know where his product is going. This is true from a physicist’s perspective on electricity, but the regulations are based on identifiable business transactions rather than the actual flow of electrons. Also, unlike out-of-state carbon emissions, out-of-state farming practices cause no harm to people here.
Thus, this decision may not have many wider implications. A broad definition of extraterritoriality, however, could really upset the applecart. Not to mention how the court’s decision will affect the welfare of the unfortunate animals that are the subject of the dispute.
Dan Farber has written and taught on environmental and constitutional law as well as contracts, case law and legislation. Currently at Berkeley Law, he is also a pioneer in the emerging field of disaster law, which examines legal issues related to society’s ability to deal effectively with the consequences of disasters and the risk of future disasters.
Legal Planet, a collaboration between UC Berkeley School of Law and UCLA Law School faculty, provides information and analysis on energy and environmental law and policy. The blog draws on the individual research strengths and expertise of legal scholars and law school think tanks. www.legal-planet.org