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The discovery of the first known case of mad cow disease in the United States last week came at a timely point in litigation over access to the courts by animal rights advocates who want to change the federal meat inspection regime. On Dec. 16, a divided 2nd U.S. Circuit Court of Appeals ruled 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, therefore, have standing in a suit against the U.S. Department of Agriculture. Members of an animal protection group that brought the suit say that regardless of the discovery of mad cow in a single 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 case of Baur v. Veneman claimed current USDA regulations on downed livestock violated the Federal Meat Inspection Act. Downed livestock are animals 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. Name plaintiff Michael Baur, a professor of philosophy and law at the Fordham University School of Law and a member of Farm Sanctuary, had filed suit in 1998 claiming the consumption of downed animals created a serious risk of transmission of some progressive neurological diseases, or Transmissible Spongiform Encephalopathies (TSEs). Included in this category of diseases is Bovine Spongiform Encephalopathy (BSE), or mad cow disease. After an unsuccessful attempt to petition the USDA, Baur and the organization filed suit in the Southern District of New York under the Administrative Procedure Act, claiming the slaughterhouse inspection scheme was fatally flawed. Southern District of New York Judge Naomi Reice Buchwald dismissed the case for lack of standing in 2002 because Baur’s exposure to downed livestock was not enough to present an “injury-in-fact” that is required for a district court to have jurisdiction. CIRCUIT REVERSES COURT The 2nd Circuit reversed Buchwald’s decision, with Judges Chester J. Straub and Northern District Judge David N. Hurd, sitting by designation, in the majority. Writing for the appeals court, Straub said the “injury-in-fact” requirement of Article III standing requires that the plaintiff assert a “concrete and particularized” injury, and not one that is hypothetical in nature. But Straub said 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 said. “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.” Farm Sanctuary Inc., the judge said, “alleges a discrete, individual risk of personal harm from exposure to contaminated beef.” He added that the claim of standing is based “on more than a generalized concern that the government obey the law.” The next step in the standing inquiry, Judge Straub said, is whether the plaintiff alleges a “credible threat of harm.” The plaintiffs met that standard at the pleading stage in part, the judge said, because government studies and statements confirm some of his key allegations, and the “alleged risk of harm arises from an established government policy.” 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 BSE.” “But adequate allegations of personal injury are an essential element of standing to sue,” Pooler said. “It is not sufficient that Baur has asserted the plausible existence of an imminent threat to the health and well-being of society at large.” Sheldon Eisenberg of Bryan Cave represented the plaintiffs. Assistant U.S. Attorneys Edward Chang and Meredith E. Kotler represented the government.

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