January 24, 2012, Cheryl Hanna: National Meat Association v. Harris: Read the Footnotes, Part II

Professor Cheryl HannaWhile Vermont’s Attorney General and Legislature are contemplating their next steps in the Vermont Yankee case, I would hope that they will carefully consider yesterday’s U.S. Supreme Court Decision in National Meat Association v. Harris, available at http://www.supremecourt.gov/opinions/11pdf/10-224.pdf

The case, although it deals with a different federal law, is eerily similar to the Vermont Yankee case.  The Federal Meat Inspection Act regulates slaughterhouses, primarily for safety concerns over the food supply, and preempts states from regulating slaughterhouses, particularly with regard to safety concerns.  In 2008, the Humane Society released undercover videos that showed workers in California slaughterhouses “dragging, kicking, and electroshocking sick and disabled cows in an effort to move them.”  In response, California passed a law that sought to keep animals out of the food supply that were unable to walk.  The state, it claimed, was primarily motivated by concerns over animal cruelty, not safety.  (Starting to sound familiar?)

In the unanimous decision, Justice Elena Kagan held that federal law prohibits states from enforcing requirements concerning “premises, facilities and operations” that are “in addition to or different from” those in federal law.  Federal law had already deemed non-ambulatory animals need not be immediately euthanized, and thereby could enter the food chain.  State law interfered with the day-to-day operations of the slaughterhouse, and thus the California law was pre-empted by federal law

Unlike Vermont Yankee, the case did not turn on the factual question of the motive and intent of the California Legislature.  Rather, the Court limited its analysis to the statute and the actual impact the California law would have on interfering with Congressional intent.  But the case is very instructive as to how the Court might view an attempt by either the Vermont Legislature or the Public Service Board to shutter Vermont Yankee for reasons other than radiological safety.

First and foremost, the Court read the California statute’s pre-emption clause very broadly, finding that it blocked state action that imposed different or additional requirements on slaughterhouses even if those requirements did not actually conflict with federal requirements.  Second, it held that the state can’t merely frame its law as a ban on the sale of non-ambulatory meat it disapproved of as a way to avoid federal preemption.  That would give the state too much power to frustrate the purpose of federal law, making a mockery of federal law.  I read the Court here as saying that you can’t claim one purpose for a law when the effect (not intent, mind you, but the outcome) of the law interferes with an area of regulation that Congress has reserved for itself

California also argued that such an interpretation of the federal law left no room for the states to regulate slaughterhouses, thereby nullifying the “savings clause” in the law that had reserved some power to the states to regulate “other matters” not covered by federal preemption.  In the last footnote of the decision, the Court rejected that argument, holding that state laws of “general application (workplace safety, building codes, etc.) could likely still apply.  This is a very narrow window of regulations.  The Court’s view seems to be that any state law that specifically interferes with slaughterhouse operations will not be upheld.  Only those laws that apply to any industry and do not frustrate federal control are within the state’s power. So, while states, in theory, could still regulate, as a practical matter, it just got a lot harder to do.

I don’t need to provide Entergy’s lawyers with my specific analysis of why National Meat Association just made their job a lot easier either if Vermont appeals or if the PSB rejects Vermont Yankee’s certificate of public good petition.  They were on it the minute the case was decided.

But what I will offer is this: Animal rights activists and anti-nuclear advocates face similar uphill battles when it comes to using state law as a means for accomplishing their ends.  If you carefully examine the last five years of federal pre-emption cases, the federal courts continue to side more often (albeit not always) with industry. When states such as California and Vermont, with progressive political agendas, try to respond to federal acquiescence to industry by seeking a route around federal law, they will find it very hard to do. Animal rights activists are already up on Capital Hill today in response to the decision, lobbying Congress to change the Federal Meat Inspection Act to give the states more power.  It may well be that the anti-nuclear advocates ought to pursue a similar strategy to have the Atomic Energy Act more explicitly allow states greater control of nuclear power plants within their boarders. Unless Congress gives the states some more explicit power here, I have a hard time seeing a federal court granting it, especially after yesterday’s decision.




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