The EATS Act is a “Race to the Bottom” w/ Chris Green

So, we're gonna sort it out so that everybody listening, and I as well, will understand what it is, and we'll understand what they're trying to do. We'll understand whether they're going to succeed, and we'll understand what we should do about it. I mean, and there are actually loads of things we could talk to you about because there's a lot of things that you're working on, but we really wanted to talk about the EATS Act and specifically because the Harvard program, I'm going to call it the Harvard Program because it's got a really, really long name, but shorthand the Harvard Program, recently put out this very comprehensive report on it. Very dense, and I believe you were one of the people who worked on the report, but tell us about how the report came about and who worked on it.

Chris Green: Sure, I will just start off by giving our full name. We're the Brooks McCormick Jr. Animal Law and Policy Program at Harvard Law School, and we've been around for about eight years. And one of the sort of pillars of what we do is both trying to increase the quantity and quality of academic research in the field. We do that through various visiting fellows and others. But we also like to have an impact on the policy side of things, and that's where things like this report come in.

So the report, it's looking at what's called the EATS Act, which is the Ending Agricultural Trade Suppression Act, and I will get into the details of that a little bit later. But it's essentially trying to nullify any state ballot initiatives like Massachusetts Question 3 and California's Prop 12 and several others that place sales restrictions on agricultural products sold within their borders.

So the origins of the EATS Act stretch back to 2008 when I think 63. 5% of California voters voted yes on Proposition 2, which was known as the Prevention of Farm Animal Cruelty Act. And that imposed minimum space and confinement requirements for egg-laying hens, veal calves, and mother pigs that were raised in the state.

So outlawing certain crates, like gestation crates, tethering veal, and battery cages for egg-laying hens. So the problem with that is that it imposed those standards on domestic producers, but then those domestic California egg producers said, "Well, this isn't really fair because you're allowing lower cost, less humane products from outside the state to flood our market, and we're having trouble competing with those."

So in 2010, The California Legislature passed Assembly Bill 1437, known as the California Egg Law, that required that all eggs sold in the state as of 2015 had to meet Proposition 2's standards, regardless of whether they're produced in California or outside the state. And so that meant that any producers wishing to continue selling their eggs in California would have to provide hens enough space to stand up, lie down, turn around, and extend their wings without touching their cage or cage mates.

And so, most of those egg producers at the time did not meet those standards. Coincidentally, at the time, the highest egg-producing district in the country was Iowa's 4th congressional district, which was represented by Steve King. So he responded with a series of different legislative maneuvers aimed at nullifying the California egg law.

That kind of ultimately became known as the King Amendment, and this was an amendment to the Farm Bill that he was trying to get this legislation passed. So that would have prohibited states and localities from setting agricultural product standards or conditions in excess of those in effect in the state of production for any goods that are sold in interstate commerce.

Mariann Sullivan: So basically, it would have meant that all these eggs produced in Steve King's district would have, in order to be sold in California, which is a huge, huge, huge market, would have to follow the same rules that California producers were forced to comply with.

Chris Green: Yeah, basically just leveling the playing field.

Mariann Sullivan: If they want to sell in California!

Now, if they don't want to sell in California, no worries.

Chris Green: Nobody's forcing anybody to do anything here. Exactly. So the King Amendment actually was included in the 2014 Farm Bill negotiations. The King Amendment was included in two different House-passed versions of the Farm Bill, but it was not included in the Senate-passed version of the bill.

And so, after a lot of opposition by Senate Democrats and public criticism, the Conference Committee ultimately left the King Amendment out of the 2014 Farm Bill. Then in 2015, King repackaged his amendment as a stand-alone piece of legislation entitled the Protecting Interstate Commerce Act. That legislative session, it went nowhere.

It wasn't passed out of the Ag Committee, but then in 2018, another Farm Bill year, the Farm Bill has to be reauthorized every five years, he reintroduced PICA with the eye to, again, having it folded into the Farm Bill. And again, in 2018, the King Amendment text was included in the House-passed version of the bill but was not included in the Senate-passed version.

So what happens if you have both chambers, the House and Senate, that have to pass a piece of legislation? And if they don't pass identically worded pieces of that bill, they then go what to what's called a conference committee. And that's where basically representatives of the House and representatives of the Senate get together kind of behind closed doors, and they do a bunch of horse trading to try and get to some sort of consensus.

And then whatever version comes out of that then goes back to both chambers

Mariann Sullivan: And sometimes, I just want to add, like, I've learned all of my workings of Congress through trying to understand animal legislation. And I was shocked to find out sometimes the things that go on conference committees never even passed either house. They just add stuff in, they take stuff out.

It's really the Wild West in there. But this was not that wild, was it? It was like it had passed the House, hadn't passed the Senate, and it got left out. Is that right?

Chris Green: Well, we don't know. So again, the big concern about the conference committee is that it is such a black box. The committee members are named, but that's about it. And so It's really worrisome because you just never know what can get traded away for something else. When we saw that this was happening, we did a study on the King Amendment.

So we hired Ann Linder to come and oversee this project. And we had a whole team of students, folks at several different schools looking at different laws. We kind of wanted to let folks know that, you know, regardless of how you feel about the California egg law, this could have a huge, wide swath of unintended consequences.

And so, Ann and our team then identified literally over 3,200 different state and local laws that would've potentially been nullified under the King Amendment. And so another student of ours, Kelly McGill, she worked a little bit on that, and then that next summer, went to work for the Senate Ag Committee.

And we've heard from several other folks as well that that report that we put out in 2018 was sort of instrumental in helping get the King Amendment knocked out on conference committee because it just basically said, you know, here's 3,200 reasons why you shouldn't do this. There's so many potential unintended consequences where you don't want to do that.

So then moving forward in November 2018, after the King Amendment was knocked out of the farm bill, building upon California Egg Law, California voters then passed what's known as Proposition 12, the Farmed Animal Confinement Initiative.

And again, almost exactly the same, 63% voting in favor. I think Prop 2 passed with 63. 5% of voter support, and Prop 12 passed with, I think, 62.7, so pretty consistent. And so Prop 12 established new minimum requirements on farmers to provide more space for, it kind of further defined the language of Prop 2, where it gave very specific, like, the number of square feet required exactly.

And it prohibited California businesses. So this is the important part. Not only did it prohibit California in-state producers from using these methods as Prop 2 had, but it then extended to what the California legislature passed with the California egg law to all the other products that were covered.

So it says specifically it prohibited California businesses from selling eggs or uncooked pork or veal that came from animals housed in ways that did not meet the requirements. And so, again, that just spurred a bunch of different litigation challenges that weren't successful. And since some legislative attempts to enforce this provision to prevent enforcement of it.

I don't know how familiar listeners are with Representative Steve King, but he lost his 2020 primary election.

Mariann Sullivan: Yes, going back to Steve King.

Chris Green: After making some, you know, very racist, anti-Semitic comments.

Mariann Sullivan: Unbelievable. Unbelievable. He was too racist for the Republicans.

Chris Green: Too racist for Iowa Republicans, exactly. And also extremely anti-Semitic as well. Comments that he's made.

Mariann Sullivan: Yeah, he's kind of gone. And, as you said, now California actually passed a law by ballot initiative that makes this apply to eggs, pork, and veal, certain types of eggs, pork, and veal. Yeah. And clearly, the California voters want this. And Steve King is gone. So, then they took it to the Supreme Court, and as most of our listeners know, they lost, right?

Chris Green: Well, yeah, so just quickly though, with Steve King gone, other legislators were kind of taking up his mantle to sort of fight against these on the legislative front. And they introduced, they called it the Exposing Agriculture Trade Suppression Act. And so we had Kelsey Everly, who formerly was at the Animal Legal Defense Fund; she joined us last summer for three months to do a report about the EATS Act, kind of update Ann Linder's report on the King Amendment. But then, right after Kelsey showed up to work on this, the Supreme Court granted cert in the pork producers’ case challenging Prop 12. Now, every court that has looked at this issue has basically said, get out of town; there’s no constitutional question here.

So this is not only true with California's egg law and with Prop 12 but also with California's statewide ban on the sale of foie gras. Every court that has looked at this has said there is no problem with this. That's why everyone was just completely shocked that the Supreme Court took this case, and given this current court's willingness to kind of move beyond longstanding, existing precedent, it was very worrisome. So, Kelsey then pivoted to do a major report on just that litigation. And giving a host of potential effects because they have much more wide-ranging effects if the Supreme Court had decided that way, including environmental laws and things like that.

Mariann Sullivan: Yeah. I think that the pork industry, and probably others as well, but the pork industry seems to be really the ones on the big charge right now. They really thought that this was taken care of. They weren't going to need a new law, that they were going to win in the Supreme Court, and that the Supreme Court would find that no California can't do this.

Chris Green: And they've passed, you know, I mean, Prop 12 was passed in 2018. Massachusetts Question 3 was passed in 2016. You know, they've had Five years to comply with this law, and the pork producers, instead of choosing to just like follow the law, have just kept betting the farm literally on the fact that they would win in court, which was surprising because they haven't won any other cases. And now that they've lost in court, just this past May in 2023, as you said, the Supreme Court sided with the state of California and upheld Prop 12. Now people talk about that being a 5-4 decision, but actually, on the core question of whether California's Prop 12 is constitutional and whether states have the ability to regulate for their own health, safety, and welfare, it was nine zip. Not one single, even though there's a whole myriad...

Mariann Sullivan: We cannot go into that vote because it's very complicated who voted for what. But your point is well taken.

Chris Green: Yeah, just the fact that there were a lot of different dissents and concurrences, but the core, what kind of gets lost in all that shuffle. is that on the core issue, it was actually a 9-0 decision that California does have the ability to regulate its own health, safety, and welfare. And so now, as a result of that, you know, the timing almost couldn't have been worse because of the Supreme Court decision in the National Pork Producers case because this happens to be a Farm Bill year.

So, as I said, the Farm Bill has to be reauthorized every five years, and it typically never happens on schedule. It’s supposed to be by the end of September, but usually, it's sort of their racing to get it done by December 31st, when the actual funding expires. So yeah, so as a result, lawmakers have again, in June, reintroduced a kind of updated version of the King Amendment, which is called the Ending Agricultural Trade Suppression Act, or EATS Act.

And you know, while the text has sort of evolved from its progression to the King Amendment to its current form, the central aim remains exactly the same- to federally block Prop 12 and similar state and local measures that are focused on animal protection for, you know, protection for farmed animals.

But we prepared this additional report now. Kelly McGill, an alumnus of the school who went on to work for the Vermont legislature, and then she worked for the Good Food Institute, doing policy work for them for a while, and also has done some work for the Plant Based Foods Initiative.

She is the lead author on the report, and also Kelsey Eberle, again, building on the work of Anne Linder and her 2018 report, and also Kelsey Eberle and some of the work that she had done on our Prop 12 report. So, again, now, even with the narrow, the language has been narrowed slightly, which we can get into. But even with a narrower language, we still identified over 1,000 state and local laws and regulations that could potentially be nullified or overruled federally under the EATS Act.

So that should give great pause to any legislators who think that it might benefit folks.

Mariann Sullivan: Yeah. I didn't realize that this was narrower language. I'm not as familiar with the history as you are because I thought the language in this one was pretty insane.

Chris Green: It's completely insane.

Mariann Sullivan: Well, we'll get into some of it, and we don't have to get into detail on all of it. But the language, nobody would know what this law means.

I mean, it's impossible to know, really, what a lot of it means. And I just want to point out something like people know that California's law was upheld by the Supreme Court. And they might be wondering now, well, if that law was constitutional, then how can Congress undermine it? But it's constitutional under the Commerce Clause, and you know, the Commerce Clause limits what states can do.

And the court found that you know, the Commerce Clause is not violated by what California did here. But the Commerce Clause doesn't really limit what the federal government can do. The federal government can pass laws that regulate commerce. I mean, that's what the Commerce Clause is all about.

So it's a whole different constitutional issue. Just because what California did was constitutional and is fine doesn't mean that the federal government, Congress, can't come in and, with certain limitations, which we'll go into, just kind of rip the rug out from under California's feet and say, "No, we're making all of the rules," though it's a lot more complicated than that, I know. And we'll go into that. Sometimes that's something I get confused about, so I just wanted to make that clear.

Chris Green: Yeah, I can talk a little bit about that if you'd like.

Mariann Sullivan: Yeah, sure. If you have something to add, please do.

Chris Green: Yeah, so under longstanding principles of federalism, state and local governments are free to regulate agricultural products and production, except in ways that are preempted, what we call preempted by federal law, or if they unlawfully discriminate against out-of-state production, or if they unduly burden trade.

Well, Congress does have the power to regulate interstate. Putting a finer point on what you said, the Commerce Clause of Article 1, the Supremacy Clause of Article 6 of the Constitution, does give Congress the power to regulate interstate commerce, but the right of states to regulate their own markets has been inferred from their Tenth Amendment powers, and their authority to do that has been recognized even in cases where state laws do have substantial effects on interstate commerce.

I think James Madison said, "Powers delegated by the proposed constitution of the federal government are few and defined. Those which are to remain to the state governments are numerous and indefinite. So the powers reserved to the several states will extend to all the optics which, in the ordinate course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state."

So, You know, they're basically saying the federal government does have the right to do things, but anything that it doesn't have the right to do is reserved to the states. And so traditionally, states have enjoyed really broad authority to legislate for the health, safety, welfare, and morals of their citizens.

But where state legislature favors local interests at the expense of out-of-state parties or disproportionately interferes with interstate trade, that law may be challenged under what's known as the dormant commerce clause. Now, there are several folks out there, scholars, including the Dean of Harvard Law School, John Manning, who said that the Dormant Commerce Clause doesn't exist.

Like, it's written nowhere in the Constitution. But, it's something that the Supreme Court, the courts have read into the Constitution. And the Dormant Commerce Clause, jurisprudence holds that states may not unduly restrict interstate commerce, even in areas where Congress hasn't acted. So that's basically to protect against protectionism.

Mariann Sullivan: Yeah, we don't want to have the states passing a lot of laws that just say, like in New York, you can only buy things that are made in New York. And you can't buy things that are made in New Jersey. Like they wanted the country to have, like, a unified commercial system so that it would work.

So that's the basic gist of it, but they've tried to spin it into something much bigger than that to try to keep states from actually protecting the animals within their borders.

Chris Green: Totally. And when an alleged violation of the Dormant Commerce Clause does occur, courts then must kind of consider the interest of the state in passing the law and determine whether that state law places what's called an unreasonable burden on interstate commerce. So even when there is a burden on interstate commerce, often it's allowed, these laws are allowed to stand.

But it's just it goes to this balancing test, and that was all the nitty gritty of the Supreme Court decision was over that proposed balancing.

Mariann Sullivan: And I know there are reasons to believe, which you alluded to some of the provisions involved, why this law would be unconstitutional too. But since that really gets us into the weeds, I'd like to talk a little bit more just about why the law is so unbelievably unclear.

Chris Green: Mm-hmm.

Mariann Sullivan: Like some, the language in there is just crazy.

Like, like, I don't know what it means. No court could look at this and say that they understand what it means. The legislative history probably doesn't define what it means. Can you give us a little bit of an idea of things that this law very well might do? I know that your report went into a lot of detail about all of the crazy results that could arguably be enforced by this law.

And it's not just about farmed animals.

Chris Green: No. And so, we're saying that the EATS Act proposes sort of a race to the bottom for state and local regulation of agricultural products. Not only raising serious constitutional concerns but also threatening the state's rights, consumer safety, and even farmers' livelihood. That said, at minimum, the EATS Act could overturn more than a thousand state and local laws and regulations, the majority of which aren't even known or identified. And we did our best to dig out as many of them as we could, but no one really knows.

Mariann Sullivan: Can I just ask a question? Because you mentioned the term agricultural products, like that's not a defined term, right?

Like, what the hell does that mean?!

Chris Green: Well, no, it actually is. The problem is that there are some terms in there that are not defined. So it says the, the actual letter of the law says... so what the prohibition, it says the government of a state or a unit of local government within a state shall not impose a standard or condition on the pre-harvest production of any agricultural products sold or offered for sale in interstate commerce if that production occurs in another state and the standard of condition is in addition to the standards of conditions applicable under federal law or the state of production.

Mariann Sullivan: Alright, tell us what that means because I'm a lawyer, and my eyes glaze over when somebody reads a statute to me.

Chris Green: So, the problem is that it says a state shall not impose a standard or condition on the pre-harvest production. So, the term standard is not defined anywhere. But it doesn't say regulation. It says a standard or condition. Neither of those terms is defined anywhere in the law. So it's going to fall to the courts to try and figure out what exactly a standard condition even is whenever there's a challenge.

Also, it says a standard or condition on the pre-harvest production. Nowhere is pre-harvest production defined anywhere in federal law currently. So that's another term that's going to have to be fought out in the courts. However, they say pre-harvest production of any agricultural products. Now, agricultural products are defined.

So the way that they define agricultural products, says, the very first line says in this section, the term agricultural products has a meaning given to the term in section two, in a section of the Agricultural Marketing Act of 1946. So you're talking about a definition that's, whatever, 70-some years old, and it is so broadly expansive. So the way that the agricultural product is defined is so broad, so here's what that definition says. Again, from 1946, it says the term agricultural products include agricultural, horticulture, viticultural, dairy products, livestock and poultry, bees, forest products, fish and shellfish, and any products thereof, including processed and manufactured products, and any and all products raised or produced on farms.

Mariann Sullivan: Well, I mean, forest products, does that mean anything made of wood is covered under...? I mean, it just said, like, you could interpret that statute to mean virtually anything.

Chris Green: Because it says, any products thereof. So, any product of a forest product. Or, again, all products produced or raised on farms. So, that could mean anything. I mean, you could, like, you could make cars. You could have a car factory on a farm, or you could be growing drugs on farms.

And so there you go. So you have this massive, massive, but it gets worse. Okay, so this is, this is, you know, as broad and crazy, you've got three really key terms, standard condition, and pre-harvest production, completely undefined. And then you have the fourth really key term defined so broadly as to include everything under the sun; that’s worrisome enough, but it gets worse.

So that's section two. So then, at the bottom of section two of this law, again, I'm going to read you the language again, and then I'll dissect it. They have what's called a rule of construction where they sort of say, okay, well, here's a sort of safety net for this law.

So first, they're saying basically again in layman's terms that a state can't pass any sort of rules or regulations on an agricultural product or can't enforce it if their state standard is stronger than either federal law or stronger than the law of the state in which that agricultural product was produced.

That's a sort of bare bones. So again, in terms of Prop 12, they're saying because there is no federal law that governs the confinement of farmed animals and because Iowa doesn't have any law that governs the confinement of farmed animals, California is not allowed to go beyond, the state protection and the federal law in itself passing a law to confine farmed animals.

Mariann Sullivan: So, basically, we're talking about the lowest common denominator, like whatever Iowa says you can do to pigs, we all have to say you can do to pigs.

Chris Green: But it gets worse. So then they put this rule of construction in that says, and I'll quote, if no standards or conditions are applicable to the production of an agricultural product pursuant to federal law or the laws of a state or locality in which the production occurs, that lack of standards and conditions shall be deemed to be the standards and conditions applicable to the production of that agricultural product.

So, basically, they're saying we are freezing all legislation in time as of 2023. And if there's a regulatory void right now that currently exists, we're etching that regulatory void into permanent law. So if there is no standard for an agricultural product at the federal level...

Mariann Sullivan: Which there isn't. I mean, for the care of animals, there just aren't any...

Chris Green: For the care of animals, but anything! This can apply to any agricultural product that's sold in interstate commerce.

So, if we later find out that there's some like agricultural product that has like negative impacts or is harmful in some way, such as a new drug, you know, folks are always finding different plants to ingest, uh, such as, like, salvia and kratom and things like that, that the federal government still has not banned.

Several states have banned those drugs, but as long as the federal government doesn't ban it, and at least one state that produces that product doesn't ban it, that one state can go sue under the EATS Act, sue all the other states that do ban it, and force them to legalize these products. So it was already sort of pretty bad in the main section there of saying the states can't pass laws that are stronger, but now they're saying if there are no laws on a particular subject, that's it. No laws can ever be passed governing that agricultural product. It's really, really freaky. But it gets even better because then they have section three, where they create a federal cause of action to challenge state regulation of interstate commerce.

So they basically include what's called a citizen suit provision. Here, again, they define agricultural products, but then, I'm not going to read this entire thing because it gets really wordy, but the EATS Act includes this broad citizen supervision that authorizes any person affected by a regulation governing, quote, any aspect of one or more agricultural products that are sold in interstate commerce and allows these citizens to bring suit to block that regulation and to seek an award of monetary damages against the state or local government enforcing that regulation.

So this citizen supervision raises significant concerns related to state sovereign immunity protected by the 11th Amendment. And so, again, it includes consumers. It says, you know, a producer, transporter, distributor, consumer, laborer, trade association, the federal government, state government, anyone... and consumer pretty much includes every single US citizen. So, any citizen that has a problem with any regulation of any agricultural product can then sue to have that regulation stopped or returned.

Mariann Sullivan: But basically, the ones who are going to sue are going to be industries, and they will have standing to sue because there are more complications about who can sue too. And it's going to allow any industry that is allowed to do anything in one particular state to sue all the other states.

Is that right?

Chris Green: But also individuals. So again, you know, again, any consumer who's affected by this regulation. There are Article 3 standing issues that we point out, but the way the law is currently written. I mean, we saw this in Prop 12 where you had, I think, four or five separate federal lawsuits challenging Prop 12, all by different producer groups.

I mean, that's usually kind of frowned upon. I mean, if the animal protection movement were filing multiple lawsuits over the same thing, they would sort of get griped at first for forum shopping or whatever. But yeah, it's just so; the other one was very specific about standard conditions on agricultural products.

Here, they're saying, and again, this section uses the term regulation. It doesn't use standard or condition. And so, there's also kind of concerns about, well, wait a minute. Normally, when you have a citizen suit provision, it specifically relates back to the language; if it's included in the law, it specifically relates back to the particular language of that law.

So, like, say, if you violate what we lay out in Section 2 if someone violates that, other people can sue to enforce that. But here, they're actually kind of creating a much broader scope under which people can sue. So, it's a little clandestine and nefarious, but courts are, again, going to have a real problem with that because, again, the language is different.

Section 2 says standard conditions. Section 3 just says regulation. Like, which is it? And is it the case that it only applies to violations of Section 2 where there's a pre-harvest condition and it's stronger than federal law or stronger than the local production law?

Mariann Sullivan: All right, I'm getting lost.

Chris Green: Basically, the bottom line is that citizen supervision, as written, doesn't just apply to violations of the sort of standard of condition on pre-harvest production where it's the state law. The California law is stronger than either federal or Iowa law.

This says any regulation of any agricultural product. Again, sold in interstate commerce. So another thing we pointed out, is it that particular product that's sold in interstate commerce, or that type of product that's sold in interstate commerce? So we give the example, you could have a Florida orange grower that doesn't really like Florida's own regulations on growing oranges.

So you could say, well, because oranges are themselves sold in interstate commerce, That Florida orange grower could actually sue the state of Florida to challenge Florida's regulations on growing oranges.

It's a real problem.

Mariann Sullivan: What you're saying, and the report is written, which goes into this in extraordinary and careful detail, says that this proposed legislation is crazy. It's just causing unbelievably huge problems. It's very poorly written. It's not carefully drawn. It's probably going to create more problems for agriculture than it's saving.

But getting back to the real reason that they wanted to pass it, getting right back to the pigs in California who can't be kept in gestation crates. Can they fix this? Can they refine it? Or even if they fixed it to just apply to the problem that they are trying to address, that animal activists have gotten the citizens of California to impose these very minor regulations on what you can do to pigs and chickens, and calves.

Like, it's still a disaster, right? I mean, the industry likes to say that California is trying to impose its laws on other states, but it's not. California should be allowed, even if it's just that narrow issue, to pass laws that protect the pigs that are being eaten in California, right?

Chris Green: Yes.

Mariann Sullivan: And that are being sold in California.

Chris Green: So there was talk about the EATS Act being narrowed just because of all these things we point out that it could apply to like, you know, narcotics, it could apply to, you know, food safety requirements, all these things.

Mariann Sullivan: So, can They fix it?

I guess that's my question. Can they fix it?

Chris Green: They can try to fix it, even if they just narrowed it to sort of like, you know, pork or something.

Interestingly, just as an aside. You know, the egg producers, several years ago, they'd agreed with the Humane Society of the United States on language to do a nationwide battery cage ban. And they agreed; they were introducing the legislation in Congress, and it was actually the pork producers.

Something that didn't even affect them, but they just didn't like the fact that there would be a national standard for caging hens, and the National Pork Producers are the ones who went and killed it.

Mariann Sullivan: Yeah, the pork producers are definitely like the top of the hill of evil in my mind. And you have been doing this for a long time. So you remember, like all of these different attempts to protect farm animals. And I think, and just while we're talking about it, that was at the federal level, and the animal rights movement used to think that the goal was to get something passed at the federal level to protect animals.

And after a while of things like that, the pork producers putting the kibosh on it, that's how we ended up going state by state.

And now they're trying to prevent us from doing that!

Chris Green: And Massachusetts is a classic example, so I'll explain a little bit about why we have these ballot initiatives. So even in states, blue states, where it's clear that voters want this, I think it's something like 92% of Americans say that animals raised for food should not endure any cruelty or suffering.

Right? You think, oh man, you got 98% support for this.

Mariann Sullivan: Like, for what the hell is going on?

Chris Green: Yeah! So that should be pretty easy to pass from a legislative point of view because, you know, this is what the majority of Americans want. But as you and David Wilson have pointed out in all your great Beyond the Law articles and work, the exact opposite is true.

That farmed animals are completely unprotected for the vast majority of their lives. They're categorically exempted from the Federal Animal Welfare Act. I think something like 27 states categorically exempts farmed animals from their state anti-cruelty laws. So you can do anything to farmed animals that you want.

Beat them with hammers, whatever. They only finally get covered by federal law when the truck that they're being transported on pulls into the line, the queue, at the slaughterhouse. Up until then, it's carte blanche. So in Massachusetts, animal advocates had polling showing that 80% of Massachusetts voters felt that farmed animals should not be confined in an extreme and cruel manner.

So battery cages for hens, gestation crates for pigs. And just to explain, we haven't really defined any of this stuff. But a gestation crate is basically this cage that is pretty much almost no bigger than the animal itself. Then this mother pig, she can't oftentimes even lie down because she gains weight while she's pregnant, and she becomes kind of trapped in here.

Obviously, you certainly can't turn around. So these gestation crates, people just feel that it's cruel and that they, and they spend their entire pregnancies in them, and because they are sort of constantly bred, these mother pigs end up spending the majority of lives in these crates where their entire life they're immobilized, and they've got nothing to do but just bite the bars of this crate in frustration.

In Massachusetts, again, we had polling showing that 80% of voters wanted to make sure that those methods couldn't be used. And each year, year after year, I think for like 7 or 8 years, they tried to get a bill passed through the Massachusetts legislature saying you can't use these methods anymore in Massachusetts.

However, in order to get to the overall chambers, you have to go through an agriculture committee. In every state legislature and even in the federal government, you usually have to go through an agriculture committee first. Most state agriculture committees are staffed by folks who either represent rural districts or that have ties to the agriculture industry.

And so even in a very blue state like Massachusetts, where you have polling showing 80% of voters want this, year after year after year for seven or eight years straight, you just couldn't even get this bill past the Agriculture Committee. So, finally, animal advocates, okay, okay, fine, we'll just go around you.

And I think it's like 24 states or 26 states have the ability to do what's called a public ballot initiative, where you can gather enough signatures, put it on the ballot, and then you can engage in direct democracy, where voters themselves decide on this issue. And so that passed in 2016, and guess what the number was?

77.7% of the vote, almost exactly what the polling was showing at 80%. And so the same thing happened in California. And that's one fundamental thing people should focus on with the EATS Act is that it's really fundamentally un-American and anti-democratic. You're gonna have the federal government coming in and overruling the will of the vast majority of California voters?

That seems just really shocking to me.

Mariann Sullivan: Yeah. That's why they love to characterize it as California putting rules on what Iowa farmers can do. But as you pointed out before, it's not putting any rules on what Iowa farmers can do because Iowa farmers don't have to sell anything in California. They aren't required to sell things in California.

Chris Green: And to me, it's just a free market issue, you know, like those companies...

Mariann Sullivan: Yeah, everybody believes in the free market until, like, you know, they don't.

Chris Green: Yeah, but I mean, to me, you know, so a free market issue, so those producers in Iowa or wherever who decide, you know what, it's worth us spending the extra money to give these animals slightly bigger cages in order to have access to the California market, we'll do so.

Those that don't think it's worth doing it won't. Like, nobody's forcing anybody to do something. It's just like, if you want to participate in a market, you have to meet the standards that apply to all producers who sell in that market. So, Iowa pork producers who don't want to sell in California great!

Go sell your pork in New York, go sell your pork in Florida, go sell your pork wherever, you know?

Mariann Sullivan: Yeah, places where they don't have ballot initiatives, and they can't get these laws passed because places where they do have ballot initiatives, these laws get passed. A lot of them have been passed when people are allowed to decide. What's interesting and the industry points out, like. People don't make this decision on their own. Like when you label pork in the grocery store, crate-free or humanely raised, 80% of the people don't go and buy it. And I think it makes total sense. It may not make sense from a vegan point of view, like a personal boycott, but people think, well if I don't buy it, that's not going to change anything.

When they are allowed to go to the ballot box and say, should these rules be applied to everybody? By an overwhelming majority, they say, yeah, I'm happy to pay more. I'm happy to do what has to be done because this will make a real difference if everybody has to buy it. So I think it makes total sense that ballot initiatives succeed where just labeling pork is never going to have the same kind of impact.

Chris Green: These ballot issues aren't something that like just snuck by the industry. I mean, they spent millions and millions and millions of dollars on advertising campaigns in Massachusetts and in California, opposing them, and they lost. And even with all the advertising, they still lost those fights, and these pieces of legislation passed.

The other lie that keeps getting told here is that you'll hear a lot of the sponsors of the EATS Act and co-sponsors and industry saying that California having this requirement is going to raise the price of pork for everyone in the United States. That's just not true.

It's only gonna raise the price of pork in California. But again, there are millions of dollars on advertising spent opposing Proposition 12 and Prop 2. And the big argument they were saying is that this is going to raise the price of pork in California.

And fully knowing that with this deluge of advertising, California's voters, so overwhelmingly, as you just pointed out. chose to impose this standard on themselves. And so, I've yet to find anyone to explain to me how California having this requirement, if you've got a consumer in Florida that's buying pork that's raised with gestation crates that's made in North Carolina- how is their price of pork affected at all by what happens in California? I mean, it's just, it's not. It's just, again, it's something pithy and gets everyone riled up, but it's just sort of not true.

Mariann Sullivan: No, it's very hard to believe it's true.

Chris Green: But back to your question about whether they can fix this? Even if they do narrow it only to pork, there are still some kind of serious constitutionality issues with the bill.

Like, even if you narrow the scope, this could get into a little bit of nitty gritty on the legal thing, but I'll just quickly say that there's what's called the Tenth Amendment to the US Constitution provides that, you know, any powers not delegated to, the federal government by the Constitution, or not prohibited to the states, are reserved to the states.

And so it says, there's this doctrine called the Anti-Commandeering Doctrine, which holds that Congress cannot compel or forbid states from doing something. Now, Congress can displace state legislation by enacting a preemptive federal law, but it may not directly control state government or its officials.

So, for example, say that you have a kind of patchwork of laws related to anything. In this case, let's say pork production. The federal government could come in and say, you know what, it's kind of too confusing with Industry having to kind of comply with like 10 different state standards. The federal government can come in and pass a law that then sets a federal standard, and that would preempt those state laws. However, in this instance, they're talking about there is no federal law that does so, and so they're basically just saying to states that you can't, even if there is no preemptive federal law. So you're basically commandeering, ordering the states not to do something,

Mariann Sullivan: That's really interesting. I, you know, I've never come across that because who tries to pull the nonsense that the meat industry tries to pull but that's really interesting. Like they're trying to actually preempt with nothing. I mean, the federal government can say you can't have any laws, even though we're not passing one either.

And that's just not kosher, you're saying.

Chris Green: And the law is very clear on this, like, you know, just there was a recent case, Murphey v. NCAA in 2018, that made clear that federal laws similar to this violate this anti-commandeering doctrine, and said that, the court affirmed that all legislative power not granted Congress by the Constitution is reserved for the states.

In Murphy, the court, very specifically on point, further clarified that the anti-commandeering doctrine extends to congressional prohibitions on state action, and the court found no distinction between, you know, ordering states to act and prohibiting them from acting because both offend what they call the basic principle that Congress cannot issue direct orders to state legislatures.

Mariann Sullivan: Interesting. Yeah. You know what? Let me just add something because something that occurred to me that that the industry could, if it wanted to, go to Congress. I mean, the industry has enormous power in Congress. And it could say we want Congress to pass laws regulating what you can do to pigs, and they don't want to do that because that would really bring attention to what they do to pigs.

Chris Green: Well, and not just that, but the status quo of benefits. Currently, there is no federal law related to raising pigs, and that's what they want to enshrine forever.

That's why you've got that rule of construction.

Mariann Sullivan: They don't want to go there and say, what we're doing is great. Let's just get it enacted into law. They don't want to do that because they know what they're doing is a fucking nightmare.

Chris Green: And they want zero law. What they want is zero regulation. And that's currently what they have at the federal level. And through this rule of construction of the EATS Act, that's what they want to chisel into granite for the rest of time.

There is one other constitutional kind of problem.

Mariann Sullivan: All right. That one was really interesting. So I'm going to let you go into the second one.

Chris Green: Uh, so the 10th Amendment. There's also an 11th Amendment concern because, so the 11th Amendment to the Constitution prevents private citizens in one state from bringing lawsuits directly against another state in federal court. The Supreme Court has interpreted this 11th Amendment to extend the same protection to states for claims brought directly by their own citizens.

So together, this doctrine is known as what's called, like, state sovereign immunity. And Section 3, that citizen suit provision that we mentioned, attempts to waive the right of states not to be sued without their consent by private entities. And so, it would also create liability for state and local officials.

There are caveats to state sovereign immunity, so it doesn't extend to, like, other states. So, one state can sue another state, and the federal government can also sue states. But private individuals are not allowed to sue states, technically, under the 11th Amendment.

Mariann Sullivan: I didn't even know that.

Chris Green: Yeah, and so this is exactly what the citizen supervision of the EATS Act does.

It completely throws that, throws that out the window.

Mariann Sullivan: It just seems so irresponsibly written, this law, like, these are not serious people. I don't know. Like, They weren't serious about writing this law. They just were; it’s like crazy. And then they figure, we'll pass it, and somebody else will work it out.

Chris Green: I think they were very serious about it. I think they knew exactly what they were doing and just trying to sneak all this stuff in. I mean, you know, one thing that I didn't mention with the citizen supervision is that typically for, you know, A hundred plus years, the jurisprudence on seeking an injunction, so an injunction is if you, someone is affected by a law, they don't like it, or, or a court decision, they will seek an injunction.

They'll seek to have the state law or whatever law put on hold while they sue against it. So, you know, it often takes three to four years for a lawsuit to work its way through the courts, but if you allow a law to go into effect, that might have a problem, say it's even, you know, you can have it range from like, abortion bans to, to anything.

So, because that law could have a significant effect during that time, courts allow you to get an injunction and just sort of prevent that law from being enforced while the courts determine whether it's constitutional or not. So in this case, so typically, if someone wants to challenge a law and get an injunction, they have to prove that they will suffer irreparable harm if the law goes into effect and also prove that they are likely to prevail at trial, saying, not only do we not like this, not only will we have, you know, severe impacts, but we can show you with all this evidence that once this does go to trial, we're more likely than not to win.

So if it if someone moving party meets all of those requirements, then the court can issue an injunction. With the EATS Act, it turns all that completely on its head and reverses these long-standing presumptions. So this would actually do the exact opposite. And so when any consumer in the country wants to challenge any agriculture, any regulation of any agricultural product, The burden then goes on to the state.

So the state then has to prove that they would suffer irreparable harm, and the state has to prove that it would prevail at trial in order to prevent the injunction.

Absolutely insane.

Mariann Sullivan: It's insane, completely insane.

I've never heard of anything, anything like that. It goes counter to all law regarding injunctions.

Chris Green: I mean, just again, just the same by fiat, we're just going to pass this law and completely

reverse, you know, decades and decades and decades and decades of jurisprudence.

Mariann Sullivan: I mean, states would never be able to defend their own policies. They just have to give up, you know, not going in any way, not going to the lowest common denominator on all of these different... it's, this is a crazy law.

Chris Green: And again, just that lowest common denominator point, you know, as long as one state... has very low or zero regulation and there is no federal law on something, that one state, that lack of regulation becomes the law of the land. Because they can go invalidate every other state law.

Mariann Sullivan: Yeah. It's like, with apologies to those in that state, we're all going to be Mississippi. I mean, the lowest amount of regulation.

Chris Green: And it's also, you know, there's a question of the statute of limitations. The way it's written, it's not clear. It says a 10-year statute of limitations. What that means is that, You know, someone affected by the law has up to 10 years to decide whether they want to sue to invalidate it, but it's not clear whether that's 10 years from the law being passed or 10 years from when they were affected by it.

So, you could have a law that was passed decades ago, one of these thousand different laws that we identified, and if you're affected by it in 2023 and the law was passed, like, say, in 1970, you could still sue to go invalidate that law because within ten years of you being affected by it.

Mariann Sullivan: That's insane. The whole thing is insane.

All right, we can't, I don't want to keep going into how insane it is because I think people have the gist, but I do have one more question; even though we've gone for a long time and I've kept you for a long time, but you know, our listeners are vegan animal rights people, and I think probably everyone listening can agree that the improvements to the lives of pigs and chickens and calves that are imposed by Prop 12, although we've been touting them and defending them in this interview, they're minimal. I mean, these animals are not living a good life once these, these... they're very, very minimal.

They're prohibiting the worst of the worst confinement. So, assuming that most of our listeners agree that this is not all that we should be doing for animals, why is this nevertheless important to defend?

Chris Green: Well, it's important for several reasons. Like, yes, you know, it's a slightly bigger cage, but that difference for that animal is everything. So on an individual level...

Mariann Sullivan: Right. It's all, it's all we can do for them. So, we should at least do that.

Chris Green: People describe the difference between sort of being in a, for a hen, being a battery cage versus an open situation as, you know, the difference between being stuck in an elevator with 11 people or being on the general floor of a Metallica show, you know, neither one's ideal, you know, you're still like not completely...

But, at least in the latter, you have the autonomy to move away from others that you don't like or to go find a corner to move around. I think every human would definitely choose the latter between those, you know, being stuck in an elevator with 10 other people for their entire lives. You know, they would definitely choose the, you know, being in the mosh pit of the Metallica show. And the same thing with pigs, you know, 24 square feet, doesn't sound like that much more.

But if that allows that pig to actually lie down during her life, or maybe even turn around, I mean, that is everything to that animal. So you can kind of, you know, there's sort of... Concerns about welfare things, but yes, this is incremental change, but for those animals impacted, it's massively incremental.

Mariann Sullivan: We should never say these animals are living an okay life. But it is ridiculous

to not recognize that better is better than worse.

Chris Green: And, put it this way, if it wasn't such a big deal, why would the pork industry be fighting it so much? You know, if this wasn't any great change, why would they be fighting so hard? They know that it's important.

Mariann Sullivan: Yeah, I am, I am actually a little mystified as to why they're fighting it as hard as they can. To me, it seems like the writing's on the wall, but you know, they're just a bunch of assholes. So,

Chris Green: Your words, not mine.

Mariann Sullivan: Something that we really didn't cover is that the industry is not unanimous on this. And there are people, even within the pork industry, who recognize that this is a mess.

Chris Green: And there are some pork producers that are really pissed because, again, Prop 12 was passed in 2018, and Question 3 in Massachusetts was passed in 2016. So again, they've had all these years, and so some of the producers have been doing it right because they know that they're not going to be able to completely retool all of their facilities overnight.

So they've been spending the past five years putting a bunch of capital investment in giving these larger cages, so they can comply with Prop 12, and if all of a sudden the EATS Act comes in and erases Prop 12, then you've got all these producers who spent all this money for nothing and that puts them at a competitive disadvantage.

Mariann Sullivan: Rewarding the ones who have just ignored the coming legal requirements.

Chris Green: 100%.

But one, one last thing, if I could, if I could, the thing that is, was kind of most surprising, one of the surprising things to us, and I think will be very surprising to the pork industry themselves, is that some of the most important laws that could be challenged under the EATS Act were put in place specifically to protect animal agriculture producers, like pork producers and chicken producers.

So. You've got all these state laws, and we identified several specifically in Iowa that are intended to prevent the transfer and spread of zoonotic and infectious diseases. These include everything from avian influenza to African swine fever, you know, a whole bunch of different things. So if someone wants to bring a truckload of pigs into Iowa, You know, there's all these very specific inspection requirements and importation requirements.

I mean, we're currently experiencing the most severe outbreak of highly pathogenic avian influenza. You know, it's already like 47 states, and over 58 million birds have been affected. You know, it has like a 90% mortality rate. And so, someone who wants to bring chickens into Iowa, technically, because those are live animals, that's a pre-harvest standard condition.

So those laws could be totally challenged. Iowa has other laws on sanitation requirements for trucks that are transporting livestock into or through the state. Again, that's a pre-harvest standard of condition. Those could all be challenged under the EATS Act. So, while these politicians and, you know, the Iowa delegation think that they're trying to help out the pork industry by saving them a little bit of money from having to make slightly bigger cages.

In the process, they're likely jeopardizing, exposing them to, you know, bankrupting losses if any one of these infectious diseases should affect their farm. I mean, it's so incredibly short-sighted.

Mariann Sullivan: I know it's remarkably stupid, stupid legislation. That does not mean that it's not going to pass.

So how can people help fight it? Just tell people what they should do. And not just fight it being enacted as it is. But also make sure that they... you can't fix this. Don't clean it up.

It's just even if you clean it up to just apply to things like Prop 12, it's not okay. So how would people make that clear?

Chris Green: Just make it clear by... the thing about this, because it is at the federal level and is in both chambers, you know, every single American out there can contact their congressional representatives in both the U. S. House and the U. S. Senate and just make their voices heard, tell them we will not tolerate having the EATS Act included in the Farm Bill. That is the whole big fight right now. They know this legislation could never pass on its own. When it was tried by Steve, even Steve King, it didn't even make it out of the Ag Committee itself. So the only way they can hope to try and slip something by the American people is to fold it into the Farm Bill.

It was heartening that in both the House and Senate versions of the EATS Act, there was not one Democrat that signed on as a co-sponsor. There also was not one Republican member of either the House or Senate Ag Committees that signed on as co-sponsors. We are told that the chair of the House Ag Committee is very supportive of it, but traditionally they don't sign on to as co-sponsors.

But yes, every single person who's listening to this should call their congressional representatives immediately. You can easily go find that information out, who they are, don't send them an email; just give them a phone call. Call their office and say, I am absolutely opposed to the EATS Act being included in the Farm Bill.

This is a state's rights issue, all states should have the right to set their own health, safety, and welfare laws. Period.

Mariann Sullivan: Yeah. And as you pointed out, as you were talking about, it occurred to me, since all these compromises get made in the committee after the farm bill, in conference committee, They could totally fix it a little bit, you know, make it like not so crazy and still impose it on, on, you know, pigs and chickens and, and, uh...

Chris Green: Or maybe not even fix it. They may, it may just be a case that, like, there are some sacred issues for Democrats. You know, the Republicans are launching this full-scale assault trying to roll back, you know, SNAP requirements and, you know, public assistance for, for food that, know, it may be the Republicans asked for 50 things and in order to get rid of some of them, Democrats could trade it away, and we have no control over that.

Mariann Sullivan: People have to make themselves heard on this because whether it gets in the farm, you know, probably, as you say, it probably won't be independent legislation, but if it gets in the farm bill, no matter what, even if it gets amended, still a complete disaster for the only route this movement has ever found to pass laws protecting these animals, even just a little bit.

And, if we lose this. It's like, there's just no, there's no way left.

Chris Green: And again, they're not only overturning states, but they were kind of basically overturning, you know, what the Supreme Court just said was a very valid exercise of state regulation. So again, the big concern is trying to keep it out of that. It's unlikely to make it into the Senate version.

So the big push is just to try and keep it out of the House version of the Farm Bill in the first place. So everybody...

Mariann Sullivan: So you have to write to your congressperson.

Chris Green: For those people who don't really think, like, oh, I'm just one, what's the big deal? Call. Because, I, you know, I was the legislative director of the Animal Legal Defense Fund prior to coming to Harvard eight years ago, coming back to get the program built with Kristen.

if a legislative office gets, like, four or five calls on something, like, Eyebrows start to get raised. If a legislative office, they say if they receive ten phone calls on something, it's like, five-alarm fire, drop everything, we need to deal this. Because so few people engage in the legislative process.

Mariann Sullivan: And this is all going to go on behind closed doors. It's not going to be an open vote where people's, I mean, if it does go to the conference committee.

So So It's very, very important that your Congressional representative hear from you. If they are in that conference committee, they know, well, actually, this is something I shouldn't trade away because I'm going to have a lot of constituents mad at me.

Chris Green: And the timeline is such that, they're supposed to, September 30th, they're supposed to have a Farm Bill agreed on by September 30th. Then, all the legislators just left for the August recess, so they're going to be gone pretty much for most of next month. So there's no way that it's likely to happen by the End of September, but significantly, neither chamber has even circulated a draft of the farm bill yet. So that's why the timing is so important. That's going to be all happening in September. So, literally, as soon as you hear this, immediately call, especially your local Congressional House member and Senate member, just tell them, you know, do everything they can to keep this from being put into the farm bill.

That way, if it's not in the Farm Bill in the first place, we don't even have to worry about the conference committee. If we can just keep it from being included in the first place, that is a huge victory, and we can kind of guarantee they can't really add anything new in the conference committee, so the whole point is just to keep it out of the Farm Bill in the first place.

So more than likely, You know, the Farm Bill has to get passed before the end of December when the actual funding runs out. But yeah, the big push is going to be in September, just everyone doing everything they can to just keep it out of the Farm Bill in the first place.

Mariann Sullivan: All right, I'm on it. Thank you so much. I've kept you for forever, but it's really been very enlightening. I did get lost a couple of times, but because it's complicated stuff, but it's so, so important. Thanks for enlightening us about it.

Chris Green: Of course.