News and commentary about the American food system.

Plus, the Department of Justice updates the H-2A program and a new study shows climate change exacerbates farm runoff.

PETA activists protest outside the Supreme Court on the morning before oral arguments take place in NPPC v. Ross. (Photo Credit: Lisa Held)

Yesterday, the Supreme Court heard oral arguments in National Pork Producers Council v. Ross, which is centered on the pork industry’s contention that California’s Proposition 12 is unconstitutional based on its impacts on businesses in other states. But during arguments that stretched more than an hour past their allotted time, the justices engaged with that contention in a way that illuminated the complex issues involved in passing farm animal welfare laws.

The question of whether the “moral interests” of one state’s citizens could be used to justify a law that impacts production of food in another state came up repeatedly, as did the case’s broader implications about the kinds of laws states can and should be able to pass.

“How broadly would you define ‘immoral?’” Justice Clarence Thomas asked Jeffrey Lamken, an attorney for the Humane Society of the United States, after Lamken’s argument began in support of Prop. 12 by stating that the law reflects a historic “moral tradition” in opposition to animal cruelty.

Justice Ketanji Brown Jackson chimed in to acknowledge that not everyone agrees gestation crates are immoral, and Chief Justice John Roberts elaborated on that point. “People in some states, maybe the ones that produce a lot of pork, in Iowa or North Carolina or Indiana, may think there’s a moral value in providing a low-cost source of protein to people, maybe particularly at times of rising food prices,” he said. “But under your analysis, it’s California’s view of morality that prevails.”

Many of the justices seemed particularly concerned about what this ruling will mean for other state laws. If they were to decide in favor of Prop.12, they expressed concern that states might pass other laws that restrict the sale of products within their borders based on politicized production practices. For example, they proposed several hypotheticals in which states might  pass laws banning the sale of food that comes from farms that employ undocumented immigrants or restrict the sale of products produced by companies who don’t pay living wages.  California attorney Michael Mongan argued that those examples differed from Prop.12 because gestation crates are more directly tied to the pork production process itself, but the justices did not seem convinced by his reasoning.

On the other hand, they were also skeptical of the pork industry’s claims that California was disrupting interstate commerce with the law and that it isn’t an issue markets—or Congress—could or should solve for.

“No one’s forcing [pork producers] to sell to California,” said Justice Sotomayor, who also brought up multiple points from amicus briefs in support of Prop. 12, including the fact that the industry has said it already has the capability to produce and trace pork that meets the standards and that other interests beyond morality—like public health—should be considered.

Justice Neil Gorsuch pushed back most aggressively on the industry’s arguments around violations of the Dormant Commerce Clause: What they seemed to be saying, Gorsuch argued, was that a group of large pork companies would be harmed, rather than proving “harm to competition or harm to interstate commerce itself.”

“We’re going to have to balance your veterinary experts against California’s veterinary experts, the economic interests of Iowa farmers against California’s moral concerns and their views about complicity in animal cruelty,” he said. “Is that any job for a court of law?”

Overall, the judges seemed to be picking apart the arguments on both sides, with no clear indication of which direction they were leaning. More interesting was that at a time when the political polarization of the Court has become its own story, this case didn’t seem to divide the justices along classic conservative-liberal lines. And while the Biden administration has made big promises to crack down on anti-competitive behavior in the meat industry, the administration’s deputy solicitor general got up to argue on behalf of the biggest pork companies, in a case that has pitted those companies against smaller, independent producers.

Meanwhile, in Utah, animal welfare advocates were celebrating a related victory. Over the weekend, a jury acquitted two activists with the animal rights group Direct Action Everywhere. They had been charged with felony burglary and theft after filming pigs in gestation crates at a massive facility owned by Smithfield Foods and taking two sick piglets with them.

“I don’t actually want you to acquit us on a legal technicality,” Wayne Hsiung, one of the activists, and a former candidate for Mayor of Berkeley, California, who represented himself at the trial, told jurors in his closing remarks. “I want you to acquit us as a matter of conscience.”

It will be months before the Supreme Court issues a decision on Prop. 12, but the case in Utah illustrates an important reality. No matter what the Court decides on the constitutionality of one state law, debates around gestation crates specifically—and how animals should be raised and treated on farms more broadly—will continue to be hashed out in courts across the country for the foreseeable future.

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Read More: Next on the Supreme Court Docket: Farm Animal Welfare Is the Pork Industry Using Food Justice to Stall California’s New Animal Welfare Law? Could Crate-Free Pork Become the New Industry Standard?

Updated Labor Laws. The U.S. Department of Labor (DOL) yesterday published a final rule designed to strengthen protections for seasonal farmworkers who are in the U.S. through the controversial H-2A program. Over the past decade, the annual number of H-2A workers in the country has more than tripled. At the same time, reports of exploitation, especially in the form of wage theft and dangerous housing conditions, are common.

Last year, a federal indictment exposed one horrifying situation in which H-2A workers in multiple states were enslaved and abused. The rule, which goes into effect on November 14, makes changes to health and safety regulations in employer-provided housing and makes it easier for the agency to inspect that housing. It’s also supposed to make it easier for the agency to make sure farms adhere to the program’s regulations and wage requirements.

In conjunction with the rollout, the United Farm Workers (UFW) Foundation announced that Labor Secretary Marty Walsh met with farmworkers, including an H-2A worker, to hear about their experiences. “We look forward to continuing to work with DOL to improve farm worker labor protections and access to immigration protections,” UFW Foundation organizing coordinator Alma Young said in a press release.

UFW was also one of a handful of organizations recently designated by the USDA to provide $600 relief checks to thousands of “essential food workers” for their services during the early phase of the pandemic.

Read More: Both Farmers and Workers Want the H-2A Guest Worker Program Fixed Guest Workers on North Carolina’s Tobacco Farms Are Fighting a “Green Monster”

Warming Climate Increases Farm Runoff. Researchers in four states published a study last week that calls attention to what they say is a growing water pollution concern: “winter nutrient runoff.” As temperatures rise, nitrogen and phosphorous from fertilizers left on farm fields that once stayed frozen in place by snow and ice are increasingly flowing into waterways, where the nutrients can harm aquatic life, threaten drinking water, and contribute to dead zones.

The study outlines how one particular phenomenon—more frequent incidents where rain hits snowy fields, resulting in a high volume of water washing off—is driving the problem. “Forty percent of the contiguous U.S. is at risk of nutrient export and soil loss from rain-on-snow events,” the researchers concluded.

One of the most effective solutions to reduce runoff during winter months is to plant cover crops, since plant roots can help hold nutrients in place. But while billions of dollars have been spent to incentivize cover-crop planting over the past decade, farmers are still only planting them on a tiny percentage of U.S. farm acres. According to a Purdue University survey released last week, 57 percent of farmers reported that they were planting cover crops on at least some of their farm acres, up from 52 percent last year. Even so, the total number of acres planted in cover crops did not increase.

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Meanwhile, the Chesapeake Bay Foundation’s annual check-in on progress made to meet pollution reduction goals for the country’s largest estuary found that nutrient runoff from agriculture is now the biggest driver of pollution, and states are unlikely to meet their 2025 targets without major changes to their plans.

Read More: Farm Runoff in U.S. Waters Has Hit Crisis Levels. Are Farmers Ready to Change? The Clean Water Act Has Failed to Curb Agriculture Pollution

Fertilizers and Fossil Fuels. Water pollution was not the only concern related to fertilizer use in the news last week. The Center for International Environmental Law released a lengthy report outlining the climate impacts of fertilizer use and connections between agrichemical and fossil fuel companies. While nutrients are necessary for plant growth, fossil fuels are required for the production and transportation of nitrogen fertilizers. Then, when they’re overused, excess nitrogen ends up in waterways or in the atmosphere as nitrous oxide, a greenhouse gas that’s 300 times more powerful than carbon dioxide in terms of warming.

One 2022 study cited in the report found that the nitrogen fertilizer contributes 2 percent of all global GHG emissions, which is greater than the impact of commercial flights. The report also details how fertilizer and fossil fuel companies often intersect and share profits: Seven of the eight companies the authors looked at had past or current ties to the oil and gas industry, and the report suggests that those ties may deepen as climate-related projects related to hydrogen, ammonia, and carbon capture advance.

Read More: Nitrous Oxide on Farms, Explained New UN Climate Report Urges Food Systems Solutions—Before It’s Too Late

Lisa Held is Civil Eats’ senior staff reporter. Since 2015, she has reported on agriculture and the food system with an eye toward sustainability, equality, and health, and her stories have appeared in publications including The Guardian, The Washington Post, and Mother Jones. In the past, she covered health and wellness and was an editor at Well+Good. She is based in Baltimore and has a master's degree from Columbia University's School of Journalism. Read more >

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