The USDA has until Friday to submit final written arguments in a federal court in New York for dismissing a third challenge to the New Swine Inspection System (NSIS).
Federal courts in Minnesota and California are also considering similar challenges to the USDA’s Food Safety and Inspection Service (FSIS) new alternative rule for market hog inspections.
The civil action in the federal court for the Western District of New York was brought in December2019 by seven nonprofit groups of animal activists led by Farm Sanctuary. As in the other cases, the Department of Justice attorneys responded to the lawsuit on behalf of FSIS by asking the court to dismiss it.
The DOJ advised the sourt on March 13 that the government wants the lawsuit dismissed because the court lacks subject matter jurisdiction. The government’s attorneys said the plaintiff groups “claim the (NSIS) rule harms their members by exposing them to an increased risk of foodborne illness and environmental harms.”
“While there is no doubt that plaintiffs disagree with the rule as a matter of policy, their alleged harms rest on a series of speculative possibilities. Thus, the plaintiffs do not have standing,” the government’s motion to dismiss says.
“To begin, plaintiffs’ theory of organizational standing is boundless. They claim injury because, as part of their routine advocacy missions, they oppose the rule on policy grounds. But plaintiffs are all advocacy groups that exist to advocate. That they have prioritized the rule as part of that advocacy in no way shows that the rule has interfered with their organizational missions or normal activities.”
The DOJ motion says: “Because the harms that plaintiffs allege are speculative and based on the actions of third parties, and on events that may never happen, the court should dismiss this case for lack of standing.”
A federal judge in Minnesota dismissed all of a similar complaint filed by labor unions, except for the question of line speeds, which is going to trial. In California, a federal judge has scheduled oral arguments on the government’s motion to dismiss that case.
In the New York written arguments, the DOJ details both the traditional inspection system and the new approach to market hog inspections. The NSIP rule permits qualifying swine establishments to voluntarily replace the traditional inspection system with the new approach.
The government says FSIS came up with the NSIS when “the agency launched an initiative designed to target its resources to address the public health risks associated with foodborne pathogens that aren’t detectable through traditional organoleptic inspection.” DOJ attorneys say the NSIP marked a “paradigm shift” in FSIS’s approach to fulfilling its statutory mandate.
The motion to dismiss is opposed by the plaintiffs, who’ve submitted various individual declarations from individuals who share their opposition to the new rule.
One is from Jill Mauer, who says she is a “federal Consumer Safety Inspector” assigned to the Austin, MN, Quality Pork Processors (QPP) slaughterhouse. She says she’d personally never consume any QPP product because of what she’s seen.
With 25 years on the job, she says QPP “took advantage of the waiver” when it transitioned to the NSIP on a pilot basis. Mauer does not inspect animal handling but says she’s observed hogs being “driven to move faster than normal walking speed, workers who have raised their paddles over their heads to strike hogs, hogs vocalizing (a sign of stress) while moving, and heaving crowding of hogs, resulting in hogs piggybacking on each another.”
Mauer also claims there that at QPP, “very little offline inspection occurs.” Increased offline inspections is a major goal of the new system. In her Declaration, she says line speeds at QPP increased to 1,325 pigs per hour from the limit of 1,106 under the traditional system for an increase of about 20 percent or 220 hogs per hour.
The DOJ is not asking for oral arguments over dismissal unless Judge Elizabeth A. Wolford would prefer to hear them. The 53-year old Buffalo native was appointed to the bench by President Barack Obama.
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