Richey rules again on Animal Welfare Act

From ANIMAL PEOPLE, Jan/Feb 1997:

WASHINGTON D.C.––An October 29 ruling
by U.S. District Court Judge Charles Richey that USDA
regulations issued under the Animal Welfare Act in fact
violate the AWA has a quality of deja vu.
In fact, Judge Richey issued a similar opinion
on March 29, 1991, but was overruled on July 25,
1994, by a three-judge panel of the U.S. Court of
Appeals, which held that the plaintiffs, the Animal
Legal Defense Fund and Roseann Circelli, Mary Eagan,
and Marc Jurnove as individuals, lacked standing to
bring the case.
The ALDF then restructured and refiled the
case. While Richey ruled again, as he did in the first
case, that the ALDF does have standing to pursue it, an
inevitable appeal by the USDA will almost certainly
again focus on the matter of standing, as have most
cases brought on behalf of animals, and it is not clear
that the Court of Appeals will this time agree with
Richey.

Even if the decision stands, it won’t bring to a
close a legal and political battle now nearly 12 years old,
that began when Congress in 1985 adopted the Improved
Standards for Laboratory Animals Act. It will, rather,
throw out the current enforcement regulations and start
the rulemaking process over again, albeit with new
guidelines for accomplishing the intent of the act–– a set
of hard-lobbied amendments to the Animal Welfare Act
which require that provisions be made for the psychological
well-being of primates, dogs, and other species kept
in regulated research and/or exhibition facilities.
When passed, the amendments were widely
regarded as marking a coming-of-age of the animal
rights movement, but celebrations of apparent political
clout and anticipation of further victories building on the
Improved Standards as a foundation were premature.
Indeed, Congress had passed a bill with seemingly bold,
sweeping aims, amounting to recognition of certain
basic, universal “rights” of animals. Yet, to a considerable
extent, the bill also turned out to be something of a
“motherhood” resolution, a general agreement that treating
animals more considerately would be nice, without
any real teeth, as Congress left detailed enforcement
regulations to be worked out by the USDA in consultation
with the interested parties, including advocacy
groups. The USDA meanwhile had––and still has––an
inherent conflict of interest, in that on the one hand it is
the agency entrusted with primary responsibility for
enforcing the AWA, and on the other is also the major
promotional arm for U.S. agriculture, the biggest of all
animal use industries. While the AWA does not apply to
farm animals, the potential precedential implications for
other animal use industries of setting high standards for
laboratories and entertainment facilities has long been a
matter of extensive discussion everywhere from articles
in legal journals to call-in talk shows.
Long delay
As Richey’s decision outlines, the lack of
Congressionally mandated regulations––or at least specific
direction for regulations––resulted in long delay.
Animal use organizations pressed for maintenance of the
status quo and/or “performance standards,” a flexible set
of interpretive guidelines which each facility could
arrange to meet as most easily possible in its circumstances.
Animal advocacy groups, on the other hand,
pushed for hard-and-fast prescriptive standards, which
would have the advtantage of enforceability.
Prescriptive standards would state “Thou shalt do thusand-such,”
and not doing thus-and-such would accordingly
be a violation of the AWA.
A first set of proposed enforcement regulations
wasn’t published until March 15, 1989, four years after
the amendments cleared Congress.
“The agency solicited comments on the proposed
rules for 120 days and received a total of 10,686
comments in time for consideration,” Richey noted in
summarizing the background to his October 29 decision.
“Rather than respond to these comments, however, the
agency instead published a second set of proposed rules
on August 15, 1990. The Secretary received comments
until October 1, 1990, at a total of 11,932 comments.
Finally the agency published its regulations on February
15, 1991, which became effective on March 18, 1991.
“Instead of setting standards, as the AWA
directs,” Richey found, “the agency’s regulation provides
that ‘Dealers, exhibitors, and research facilities
must develop, document, and follow an appropriate
plan for environmental enhancement adequate to promote
the psychological well-being of nonhuman primates…in
accordance with the currently accepted professional
standards as cited in appropriate professional journals
or reference guides, and as directed by the attending
veterinarian.”
Opting for the flexibility that the animal use
industries sought, Richey ruled, resulted in a regulation
in this instance, and in many others, which explicitly
failed to meet either the intent of Congress or the expectation
of any sort of regulation that it must be specific
enough to be enforced in some practical manner.