OAKLAND, Calif. (CN) — A federal judge sided with the feds Friday, finding that former Agriculture Secretary Sonny Perdue’s rules for inspecting pigs before they are sent to slaughter are not “arbitrary and capricious,” nor do they violate food safety standards.
A group of three nonprofits, including the Center for Food Safety, Food & Water Watch and the Humane Farming Association, alleged in federal court in February 2020 that Perdue’s rollback of food-safety inspection regulations at pig-slaughtering plants will result in dangerous pork products. After the groups moved for summary judgment in January this year, the feds filed an opposition and cross-motion for summary judgment on Feb. 24.
The U.S. Department of Agriculture rolled out a New Swine Inspection System (NSIS) in 2019, couching it as an effort to modernize pork inspections throughout the country by establishing a “voluntary inspection system” for slaughterhouses while speeding up the slaughter lines for more efficient processing. The environmental advocacy groups claimed the government’s move to turn hog inspection over to private companies will lead to adulterated and unwholesome pork products ending up in grocery stores and restaurants throughout the country.
The plaintiffs said the feds’ program relies in large part on meat company employees conducting inspections instead of government inspectors, and by changing historic practices could increase danger to public health. They said an examination of USDA data showed that plants that piloted the new system had significantly more regulatory violations for fecal and digestive matter on carcasses than traditional plants.
The groups also alleged that employees in these plants repeatedly could not perform newly assigned inspection tasks, such as slicing and feeling lymph nodes, usually performed by trained federal USDA inspectors to identify animal conditions and diseases.
The federal government is likely to adopt these rules at plants producing more than 90% of the U.S. pork supply, the advocates said.
"The Trump administration implemented this outrageous self-policing initiative that hands over inspection duties to meat companies themselves — even though 48 million Americans get sick every year due to foodborne illness," said Zach Corrigan, senior attorney for Food & Water Watch in a statement.
In February 2021, U.S. District Judge Jeffrey White — a George W. Bush appointee — greenlit the lawsuit, finding the threat of tainted pork on American dinner tables enough to give the groups standing to bring their case. In April this year, White granted the plaintiffs’ request to voluntarily dismiss two claims for relief with prejudice.
But on Friday, White said the environmental groups did not prove their claim that the new inspection program did not meet the government's own standards — denying the groups’ motion for summary judgment and instead granting it for the government.
He said the government’s argument, asserting that plaintiffs’ declarations used an “erroneous” claim that pork produced under the NSIS program is “higher risk” than pork produced under the traditional inspection system, was only an argument on the merits. But he said he agreed with the federal government’s statement that the pre-inspection sorting conducted by plant employees does not replace federal inspection and is an additional step in the process before federal inspection occurs.
“Under NSIS, federal inspectors still inspect each animal before it is slaughtered for meat,” White wrote. He cited the government's report that pre-inspection divides healthy and abnormal animals, and federal inspectors then inspect healthy animals to determine any suspect conditions.
“Thus, the pre-inspection sorting process does not replace federal inspection; federal inspectors still inspect the animals ‘before they shall be allowed to enter into any slaughtering establishment, in which they are to be slaughtered’ … and thus the Final Rule does not injure plaintiffs or their members,” White wrote.
He also agreed with the government that the practice of isolating animals suspected of abnormal conditions, and subsequently being examined to determine being unfit for slaughter, meets the agency's own health standards.
White found that the NSIS program is not “capricious,” and the fact that federal government inspectors may have ignored instances of worker non-compliance with inspection standards is not sufficient to find the NSIS arbitrary. The judge was also not convinced that the feds’ failure to allow notice and comment on a revised risk assessment altered the NSIS in a way that prevented the public from providing comment on proposed illness reductions.
White issued a subsequent judgment to close the case in favor of the federal government.
“Because the court failed to condemn these Trump-era reductions in safety measures for hog slaughter, we can only hope we don't see more foodborne illness or even further pandemics that should be protected by our federal meat processing law," said Amy van Saun, senior attorney with Center for Food Safety.
"We are disappointed that the court upheld USDA's dangerous rules, allowing profit-driven meat companies to ramp up line speeds and police their own slaughterhouses, putting both workers and consumers at risk in the process,” said Tarah Heinzen, legal director of Food & Water Watch. “While USDA continues to let the fox guard the henhouse, Food & Water Watch will keep working to hold Big Ag accountable for its harms to frontline workers, consumers, animals, and the environment.”
Farm Sanctuary president and co-founder Gene Baur said by email after reviewing the lawsuit outcome Friday that he thinks "Entrenched factory farm interests wield undue influence in political and legal institutions, and they act irresponsibly. In the absence of proper government oversight, citizens can take matters into their own hands by voting with their dollars and avoiding animal products."
Robert Field, a professor of public health and law at Drexel University, said in an interview that he was not surprised by the judge's ruling, as he said judges tend to give federal agencies "wide deference to interpret the extent of their own powers."
Because federal agencies are required to gather evidence before issuing a rule, Field said being found "arbitrary or capricious" usually only happens when a court finds an agency is actually acting outside of its authority. But he said he was surprised that the Biden administration is maintaining and defending Trump-era policies like the NSIS, and disappointed that the industry is being allowed to inspect itself -— which he considers "going backwards."
"We assume in this country that our food is going to be generally safe," he said. "We don't think about it until there's a problem, and this industry self-inspection has the potential to create health hazards."
Field said he does expect the issue of federal agency discretion to be reviewed by the Supreme Court, possibly within the year.
"Conservative Supreme Court justices have indicated that they would like to restrict discretion of federal agencies," he said. "Their concern is these bureaucratic agencies led by unelected officials could go 'too far.' Allowing broad agency discretion is usually going to favor consumers or broad interest groups. But in this case, agency discretion seems to be favoring the industry over consumers."
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