Tossed line speed case is coming back

The federal case of The Humane Society of the United States (HSUS) v. Sonny Perdue was dismissed in late February after hanging around for four years.

HSUS and other animal activists, on Feb. 25, 2020, sued then Secretary of Agriculture Perdue, challenging rules set by the USDA on chicken-slaughter line speeds at specific chicken slaughterhouses. A 2014 regulation from the USDA’s Food Safety and Inspection Service (FSIS) allows line speeds of 140 chickens per minute. In 2018, FSIS began allowing waivers for slaughterhouses that permit line speeds of 175 chickens per minute.

After four years in the U.S. District Court for Northern California, U.S. Magistrate Judge Laurel Beeler tossed the line speed lawsuit, but it is not over.  Her order gives HSUS and the other activists “ leave to amend.”

The plaintiffs must file any amended complaint within twenty-one days and attach a black line of the amended complaint against the current complaint as an exhibit. If the plaintiffs do not amend the complaint, the court will enter judgment in favor of the defendants.”

The 2018 waivers were terminated in 2022 and modified waivers were allowed under new criteria with the new criteria continuing to incorporate the 2018 line-speed increase. The plaintiffs challenged the line-speed-increase decision because it violates the federal Administrative Procedure Act (APA).

USDA’s Food Safety and Inspection Service (FSIS) conducted rule-making from 2012 to 2014, resulting in the “New Poultry Inspection System,” an optional federal inspection system for chicken slaughterhouses. 

Under the NPIS, opt-in slaughterhouses could operate at line speeds of up to 140 chickens per minute. During the rule-making, FSIS considered and rejected allowing all opt-in slaughterhouses to use line speeds of up to 175 chickens per minute, but it did allow up to twenty slaughterhouses.

In addition to HSUS, the other non-profit activists are Animal Outlook, the Government Accountability Project, Mercy for Animals, and Marin Humane. 

“The plaintiffs describe the chicken-slaughter process, from transportation from the factory farm to upside-down shackling on a conveyor line, to passage through electrified water to render the chickens unconscious, to carotid-artery severing by a blade, to submersion of the deceased chickens into a hot-water tank. The plaintiffs allege that each step entails a margin of error such that the intended result at that step is not achieved for a certain number of chickens (but those chickens still proceed to the next step),” the court order explains.

 “The adverse effects from higher line speeds are essential that these error rates increase, resulting in problems such as bruising and broken bones (which threaten food safety), inhumane treatment (for example, conscious chickens entering scalding water at the final step), worker injuries (including exposure to chickens’ waste), and environmental harm (such as from increased water and fossil-fuel consumption),” it adds.

USDA said the plaintiffs lacked standing to continue as the 2018 waivers were terminated and are not a final agency action. Modified waivers are permitted under the 2022 criteria.

The Judge said:” The defendants contend that the plaintiffs’ injuries stem from waivers issued under the 2018 waiver criteria, not the requirements themselves. Put another way, if no waivers had been issued, the harms alleged to the animal welfare mission and the members’ environmental interests would not have occurred. Instead, the plaintiffs challenge only FSIS’s 2018 decision (the waiver criteria for slaughterhouses to use maximum line speeds of 175 rather than 140 chickens per minute).”

As a clear sign the issue will be back, the judge said:” Dismissal of a complaint without leave to amend should be granted only when the jurisdictional defect cannot be cured by amendment.”

“The plaintiffs have the burden of establishing standing; the judge continues in her 19-page order.  “They have not established that injuries from the poultry establishments were traceable to the 2018 waiver criteria or are redressable. They can try to do so in an amended complaint that addresses the changed regulatory landscape, including the termination of the waivers and the issuance of modified waivers under the 2022 criteria.”

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