Animal advocates need to be creative litigators. There are few laws offering any meaningful protection for animals and those that do either do not permit private enforcement or require counsel to identify a human plaintiff that meets the constitutional and prudential standing requirements. The door to the courthouse can be an awfully difficult journey when the real party harmed is a nonhuman animal.
The Animal Welfare Act (the AWA) is the most comprehensive federal law protecting animals. The AWA requires minimum standards of care and treatment for certain species bred for commercial sale, used in research and testing, transported commercially or exhibited to the public (e.g., zoos and circuses). It offers no protection for animals raised for food or other uses. Enforcement is left to the USDA and the law has no citizen suit provision. Audits by the Office of Inspector General have shown instances where the USDA refused to issue fines for violations, failed to push for collection of the fines that actually were issued, arbitrarily lowered penalties and otherwise cooperated with offenders. The Department of Agriculture also continuously requests inadequate funding from Congress to perform its inspection and enforcement duties. Without a means to bring a direct action, animal advocates are forced to sue under the Administrative Procedure Act (the APA) to attempt to force the USDA to enforce the law as written but they then come up against major obstacles—first, finding a plaintiff with standing to bring suit and then overcoming the deferential standard afforded agency action under Chevron U.S.A. v. Natural Resources Defense Council, 468 U.S. 837 (1984). So, suits brought to enforce the protections granted to animals in the AWA are rarely brought and even more rarely successful.