Who Can Put Suit Challenging Cali's Egg Law Back Together Again?
The answer? Farmers.
Last week a federal court in California threw out a multi-state lawsuit challenging California's looming egg production rules. Earlier this year, attorneys general in six states challenged the California rules, which apply to farmers in other states, including theirs.
The lawsuit, as Food Safety News puts it, "argued that California was not acting to make food safer nor animals healthier, but to advance its own purely commercial interests."
Specifically, the California law, set to take effect next year, would require egg producers within and without the state to house egg-laying hens in cages or other enclosures that permit the hens to stand, lay down, turn around and fully extending their wings.
The state attorneys general argued that California was legislating in other states, in direct violation of the Constitution's Commerce Clause.
In her ruling, U.S. District Judge Kimberly Mueller doesn't dispute that argument. In fact, her decision clearly contemplates a way forward for egg farmers to challenge the California law. Judge Mueller is pretty clear that egg farmers—and not governments of states where egg farmers raise hens—have standing.
"Plaintiffs' arguments focus on the potential harm each state's egg farmers face," Judge Mueller writes in her decision. "The alleged imminent injury, however, does not involve an injury the citizens of each state face but rather a potential injury each state's egg farmers face when deciding whether or not to comply with" California law.
But Judge Mueller ruled that "the states did not prove California's law would hurt their citizens, only some egg producers."
In short, the wrong people made the right arguments.
I have no problem with the standing rule, which requires a party that is suffering or might suffer injury to sue. I also support farming practices that treat animals that provide us with (or are turned into) food with respect. I actively seek out cage-free eggs. I also oppose so-called "ag-gag" laws.
But I also oppose California's efforts to tell its own farmers—and certainly famers in other states—how to raise their hens. And I oppose such rules even if those provisions—such as those that apply to farmers in other states—are probably unenforceable. This hypothetical illustrates that fact:
California inspector: Hi, Iowa poultry farmer. I'm from California's agriculture department. Lovely farm you have here. I'd like to see inside your barn.
Iowa farmer: Get off my farm.
California inspector: How big are your hen enclosures?
Iowa farmer: Piss off.
California inspector: Well, okay then.
If California may dictate standards for raising animals in other states, then any state—in keeping with the hypothetical, let's say Iowa—could pass a law that prohibits, say, farmers from raising crops in drought-stricken areas. The justification? It's not a good use of water, and water should be conserved (rather than exported in the form of produce) in times of drought. Since California is in the midst of a decade-long drought, then that rule would effectively bar California crops from Iowa. If a handful of other states followed, then the rule could doom California agriculture—including, for example, the state's enormous wine industry.
The Constitution was established, in part, to prevent states from enacting laws like these. Here, the Constitution is supposed to prevent states from acting like petulant children.
"To put it simply, it has been the genius of the American system that we have free trade between states," wrote Blake Hurst, a Missouri farmer, in a piece on California's egg law in the American Enterprise Institute's online magazine earlier this year.
But California's egg law (along with its foie gras ban) violates that constitutional mandate of free trade.
So what now?
Advocates of laws requiring larger hen cages are pleased with the ruling.
"We are delighted that Judge Mueller has dismissed this baseless lawsuit, and ordered that it can never be filed again," says Paul Shapiro, vice president of farm animal protection with the Humane Society of the United States, which joined the lawsuit in support of the California law, in an email to me earlier this week. "The Judge's opinion not only found that Attorney General Koster and the other attorneys general do not even have standing to file their case, but that their entire theory for why California's food safety and hen protection law will harm egg farmers is totally without merit."
The states may appeal—though because the judge barred them from doing so, they'd first have to appeal their lack of right to appeal.
Missouri AG Chris Koster, who first filed the lawsuit in February, says the state is now weighing its options. Iowa's agriculture secretary said his state is doing the same.
It doesn't appear the most likely substitute litigant will sue. Chad Gregory, president and CEO of the United Egg Producers, indicated in a statement emailed to me this week that his group sees the law as likely to take effect.
In the statement, Gregory notes that UEP "remains concerned about the impact of these laws and regulations," but notes that the cooperative, which represents the owners of 95 percent of egg producers nationwide, but that the group "will continue to be a resource for egg farmers and for our stakeholders as this process evolves and as the laws and regulations take effect." (emphrasis mine)
Why didn't UEP–—which certainly represents the right people—join the lawsuit when doing so may have made the standing issue largely irrelevant?
Professor Pamela Vesilind of University of Arkansas Law School calls the decision of literally every interested party in the country not to join the lawsuit a "fundamental mistake." Fundamental, yes. But not fatal.
So who might sue?
A smaller group, the National Association of Egg Farmers, opposed the California law and supported the lawsuit.
"Legislating new requirements on egg farmers will force smaller, family farms out of business," notes the NAEF.
Another possibility? An aggrieved individual farmer like Missouri's Blake Hurst.
I wrote a column supporting the lawsuit's reasoning and goals shortly after it was filed. I still feel the same about its merits.
Farmers can and should stand up for their rights. This temporary setback doesn't change that. In fact, it only serves to emphasize that point.