Animal & Natural Resource Law Review Volume XVII

Table of Contents

ARTICLES

A World Without Bees: Is the Precautionary Principle Our Only Hope Against Sulfoxaflor and Colony Collapse Disorder?

Thomas Cottle.........................................................................................1

Throughout the world, there is a steady decline in the population of pollinators due to pesticide use. This phenomenon is known as Colony Collapse Disorder. This is a worldwide problem because most food requires pollination to grow properly. On July 12, 2019, the Environmental Protection Agency unconditionally registered a pesticide called Sulfoxaflor, which is highly toxic to pollinators. In doing so, pollinator populations across the United States are threatened and Colony Collapse Disorder will advance. This article analyses the regulation of Sulfoxaflor in the United States, Europe, and specifically France (the first European country to fully ban Sulfoxaflor). The regulation of Sulfoxaflor in Europe and France is much more strict due to the precautionary principle, which has yet to be adopted in the United States. I recommend that the United States adopt the precautionary principle, as Europe and France have, or something similar to help establish a means to protect its population of pollinators.

Animal Welfare Laws in Kuwait: All Bark, No Bite

Fatemah Albader..................................................................................27

Animals are not protected through any legal framework in Kuwait. While some animal welfare laws exist in theory, they are not enforced in practice, and animal abuse remains rampant, affecting both strays and pets. Abuse ranges from pets being abandoned to the streets to cruelty of the Friday Market, a place that sells animals in extremely terrible living conditions resulting in malnourishment and increasing health deterioration. The time is ripe to alert the Kuwaiti government on the practices that have been allowed to flourish for so long. This article advocates that the laws in Kuwait must change to the benefit of all animals. In doing so, this article takes a comparative approach, comparing animal rights and welfare laws in different jurisdictions, namely the United States and Switzerland. Moreover, this article proposes the possibility of an international law framework to govern animal abuse and cruelty, and the feasibility of implementing such a framework. This article concludes that the Kuwaiti government must undertake to ensure compliance with its legal framework governing animal protection in Kuwait, both in theory and in practice.

Canines in the Courtroom: A Witness’s Best Friend Without Prejudice

Ashley Englund.....................................................................................45

Courtroom canines are an emerging courtroom accommodation to assist children testifying at trial. These canines are specifically trained to reduce a child’s stress levels, enabling more accurate and clear testimony. The use of these canines causes concern for defendants and judges. Defendants assert that the use of a courtroom canine will inject sympathy into jury box, enhance the credibility of the witness who is accompanied by a canine, and in turn prejudice the defendant. These fears, however, are unsubstantiated, as recent empirical research reveals that the use of a courtroom canine has no prejudicial effect on neither the defendant nor the child witness. When compared to other courtroom accommodations, such as CCTV, comfort objects, and support persons, courtroom canines are the best accommodation available for child witnesses. In consideration of judges and defendants’ concerns, this article offers a practical guide to mitigate any potential prejudice resulting from the presence of a canine.

Don’t Count Your Chickens Before They Hatch: Urban Farming with Backyard Chickens, Local Laws, Neighbors, and Successful Détente?

John R. Dorocak, J.D., LL.M. (Tax), C.P.A...........................................79

Urban farming has been popular, with backyard chickens just one type of such farming. The urban farmer and her neighbors may not always agree on the particular farming undertaken. Local statutory law, whether county or municipal ordinances, including laws concerning zoning, business licenses, noise, and nuisances, may not be sufficient to clearly define the rights of the parties to the satisfaction of all concerned. Despite its reputation as a last resort, the courts may be the regulatory agency most able to apply nuisance laws to specific circumstances to settle competing rights in the area of urban farming with backyard chickens.

Animal Personhood: The Quest for Recognition

Macarena Montes Franceschini...............................................................93

This article provides a systematic historical overview of case law from different countries on nonhuman animal legal personhood. It discusses twenty-seven cases in which either petitioners or judges have advocated legal personhood for nonhuman animals during judicial proceedings. The majority, including the successful case of the chimpanzee Cecilia in Argentina, are writs of habeas corpus from North or South America that attribute basic rights, such as the right to bodily liberty, to an animal. The article also examines other strategies for establishing animal rights in other types of procedures, as well as four cases in South Asia. This analysis of case law yields various surprising conclusions. First, even though these types of cases were initially considered to have low chances of success, and thus high chances of setting up negative legal precedents, attempts to accord rights or legal personhood to animals have exhibited a staggering increase in number, as well as in the variety of species and countries involved, and their ability to reach higher courts. Second, species membership was not crucial for the courts, and success did not depend on the species’ genetic proximity to humans. In practice, the legal philosophy of those involved and the severity of the animal suffering played more significant roles than proximity to humans. Finally, three dilemmas are revealed. The first concerns the pros and cons of employing legal versus political means, the second concerns the relative advantages of habeas corpus writs versus other legal strategies, and the third concerns whether legal practitioners should attempt certain cases with a very low probability of success.

Humanity Has Beef with the Meat Industry: The Cultural Push to Change the Way Beef is Produced, Harvested, and Consumed Stemming from the Adverse Effects of Beef on the Environment and Human Health

Rachel Tackman..................................................................................151

Mass consumption of beef stemming from large beef production corporations harm the environment and public health. Diets high in red meat have been associated with type 2 diabetes, cardiovascular disease, antibiotic resistance, obesity, and some cancers. Large beef production factories are a huge contributor to environmental issues such as greenhouse gas emissions, deforestation, fresh water consumption, and overproduction of waste. These corporations continue to grow by convincing U.S. federal agencies to spread lies and propaganda encouraging people to eat more beef despite direct evidence that it harms society. Agencies need to crack down on the environmental and health implications of the way beef is consumed in the United States today for the betterment of the American people and the planet

Persistent Environmental Pollutants and Water Utilities: The Argument for CERCLA Exemptions in Polyfluoroalkyl Substances (PFAS) Cleanup

Alec D. Tyra........................................................................................187

Per- and Polyfluoroalkyl Substances, like Perfluorooctyl Sulfonate and Perfluorooctanoic acid, are a class of synthetic chemicals that present a host of adverse health effects. These chemicals present an existential threat in drinking water supplies due to their environmental persistence and widespread use in industrial and consumer products. Due to their widespread use, there are detectable levels of groundwater contamination in nearly all fifty states. As the groundwater contamination spreads, the chemicals can enter public drinking water supplies, leading to exposure. Currently there is little regulation at the federal level and only some states have addressed the issue. However, the federal government and states are quickly moving to address the issue by considering drinking water standards and listing PFAS as a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act, potentially causing overwhelming costs and liability on water utilities that are not able to keep pace. Complying with current state and future federal drinking water standards will cost water utilities billions of dollars. In addition, regulating Per- and Polyfluoroalkyl Substances under CERCLA exposes water utilities to added liability. Because of the potential costs facing water utilities, Congress should exempt them from CERCLA liability. The exemption would be in line with the policy justifications for the oil and gas industry’s petroleum exclusion under the same act.

Restoring Justice for Animal Victims

Brittany Hill........................................................................................217

Restorative justice—while not a new concept—is an emerging area of criminal justice reform. Restorative justice brings together key stakeholders who are affected by crime: victims, offenders, and communities in a non-adversarial way and aims to hold offenders accountable for the crimes they commit. There is a strong emphasis on healing, repair, and rehabilitation rather than punishment. First, this Article introduces the concept of restorative justice, briefly discussing its origins, goals, and uses. Second, this Article explores the possibility of utilizing restorative justice in cases involving crimes against animals. While not applicable in every cruelty case, this Article maintains that restorative justice is a viable option for some cases, particularly where offenders are remorseful, willing to admit guilt, and prepared to engage in the process. Third, this Article discusses the important role those harmed by crime—victims—play in the restorative justice process and, in turn, positions animals as crime victims. In doing so, this Article contends that restorative justice validates animal crime victims’ suffering and has the potential to repair that harm in ways the traditional criminal justice system does not. The goals of this Article are threefold: to introduce a new concept of criminal justice reform as a way to address some instances of animal cruelty, to center animal victims’ experiences when a crime is committed against them and address their harm and suffering, and to begin conversations about increasing accountability and rehabilitation and reducing recidivism amongst animal cruelty offenders.

The Bear Necessities: Ursine Suffering Exposed, Explained, and Expelled

Morgan Pattan....................................................................................249

The United States is home to tens of thousands of bears, with over one thousand bears kept in captivity. Despite these high numbers, they receive little media attention in comparison to other wildlife. As scientific research has evolved, it has become clear that captivity has a detrimental impact on bear’s physical and psychological well-being. A contributing factor to this is the insufficiency of the current legal framework that governs the care and keeping of bears in captivity. This framework leaves many bears suffering in roadside zoos without a remedy. To ensure that the well-being of bears held in captivity is the top priority of all zoos and  facilities with bears in their charge, an amendment to the Animal Welfare Act that carves out species specific standards for bears is needed.