Thank you for sharing!

Your article was successfully shared with the contacts you provided.
New York-The discovery of the first known case of mad cow disease in the United States has come at a timely point in litigation over access to the courts by animal rights advocates who want to change federal meat inspections. A divided 2d U.S. Circuit Court of Appeals ruled on Dec. 16 that a plaintiff does not have to allege that mad cow disease has been detected in the United States to claim a credible risk of harm and thus has standing to sue the U.S. Department of Agriculture (USDA). Members of an animal protection group that brought the suit say that, regardless of the discovery of the disease in an animal in Washington state, the court’s decision advances their cause on a practical level. Gene Bauston, head of the Watkins Glen, N.Y.-based Farm Sanctuary Inc., said one of the primary benefits of the decision is that it opened up discovery. “The USDA has always been unwilling to share information about the number of downed animals that are slaughtered and whether any of them are tested for mad cow disease,” Bauston said. The plaintiff in Baur v. Veneman, No. 02-6249, claimed that current USDA regulations on “downed” livestock violated the Federal Meat Inspection Act. Downed animals are those that collapse for unknown reasons or cannot walk or stand before they are slaughtered. Such animals, often dairy cows that no longer produce milk, are considered by the government to be fit for human consumption once they are examined by a veterinary officer Plaintiff Michael Baur, a professor of philosophy and law at Fordham University School of Law and a member of Farm Sanctuary, filed suit in 1998. He claimed that the consumption of downed animals created a serious risk of transmission of some progressive neurological diseases, or transmissible spongiform encephalopathies. Included in this category of diseases is bovine spongiform encephalopathy, or mad cow disease. After an unsuccessful attempt to petition the USDA, Baur and the organization sued in the Southern District of New York under the Administrative Procedure Act, claiming the slaughterhouse inspection scheme was fatally flawed. Judge Naomi Reice Buchwald dismissed the case for lack of standing in 2002 on the ground that Baur’s exposure to downed livestock was not enough to present an “injury-in-fact” that is required for a federal court to have jurisdiction. ‘Threatened harm’ The 2d Circuit reversed Buchwald’s decision. Writing for the appeals court, Judge Chester J. Straub said the “injury-in-fact” requirement for Article III standing purposes is that the plaintiff assert a “concrete and particularized” injury, not one that is hypothetical in nature. But Straub wrote that the appeals courts that have considered the issue “have generally recognized that threatened harm in the form of an increased risk of future injury may serve as injury-in-fact for Article III standing purposes. “In this case, we need not decide as a matter of law whether the enhanced risk generally qualifies as sufficient injury to confer standing, nor do we purport to imply that we would adopt such a broad view,” he wrote. “In the specific context of food and drug safety suits, however, we conclude that such injuries are cognizable for standing purposes, where the plaintiff alleges exposure to potentially harmful products.” In dissent, Judge Rosemary Pooler said the majority “has not made any substantial effort to consider the strength of Baur’s allegations that he faces injury from a possible future outbreak” of mad cow disease.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.