The following is a brief analysis of how issues may be successfully litigated for the legal rights of animals other than humans. As we who have spent a long time in the environmental industry in general and the environmental practice specifically see a few of our hopes and dreams come to fruition with greater societal awareness of the importance of environmental issues, those of us interested in litigating animal law struggle to fit the protection of non-humans into the greater perspective of protecting the planet. Many are now more familiar with the sustainability, carrying capacity, and ecocentric[i] arguments about the importance of keeping more than we humans around in the foreseeable future.
WHERE ANIMALS FIT
When most litigators think of environmental law, they usually tick off the usual suspects; toxic torts, contamination, oil & gas, energy, utility, wetlands, land use, maybe a little natural resources. Typically, the concept of litigating in the practice of animal law is far down the list, if on that list at all. However, there have been a few recent public concerns that might begin changing that trend. These include the reported loss of polar bear habitat due to global warming, the groundwater contamination from concentrated animal feeding operations (CAFOs)[ii], and the mistreatment and over-injection of our meat supply in factory farmhouses. This has not been the case until quite recently. Even in the heady days of the Progressive Era of the early 20th Century in America[iii], or even the environmental awareness era of the 1960’s, the idea of providing legal protections to animals was not part of the mantra. There was growing vegetarianism during these times, but not the push toward legal protections that even shadowed those for humans.
WE PROTECT THE CUTE
There has always been a bias toward the cute. Just as studies have shown that “attractive” women and men get more advantages in our society, so too do the non-human animals. We find it repugnant for other cultures to kill dogs and cats for food, but think nothing of slaughtering cows and pigs by the tens of millions to feed our lust for meat. We pick and choose the animals we find important, often based on their aesthetic or utilitarian value. We always have. Obviously those advocating the mass killing of cows have never looked deeply into their beautiful, brooding brown eyes. This bias, though unfortunate, is natural. Instead of trying to change human nature, the environmental litigator should harness its power for the best interests of those who cannot speak for themselves in our legal system. It is far easier to make the argument that we should protect animals since they are aesthetically pleasing than because they fill important niches in a local, regional, or even global ecosystem. Though this does not do much for the animals who we think were hit with the ugly stick, we can build persuasive legal arguments for the preservation of those animals in the greater context. As a long-time scientist, I can tell you what most litigators already know. There is little place for complex scientific concepts in the courtroom; at least not without a lot of basic introduction and a nice, straight-forward presentation.
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Mark J. Bamberger, Ph.D., J.D. is an attorney and principal of The Mark Bamberger Co., LLC in Tipp City, Ohio. Mark was a practicing geologist for 18 years, specializing in groundwater contamination and hazardous waste, before becoming an attorney. He taught college geology, environmental science, environmental business, environmental philosophy, and American presidential history part-time for 22 years. His environmental practice includes energy, oil & gas, coal, nuclear, agricultural, natural resources, land use, and conservation law and litigation. His passion is animal law. Please feel free to contact him at 877-644-8181 or mark@bambergerlaw.com.
