National Pork Producers Council v. Ross: How Can A State Regulate The Products Sold Within Its Borders?

By: Alexandra Dickerman

Originally sent for publication on may 11th, 2023.

Edited By: Luke Vredenburg and Isabel Gortner

Knowledge of the inhumane practices of many farming establishments is becoming more widespread, but unfortunately, there is a lack of federal legislation protecting livestock. This problem has not gone unnoticed by the state of California, which has a history of passing protective legislation for farm animals. However, a recent lawsuit concerning the state’s most comprehensive farm animal welfare law, Proposition 12, is threatening to upend important animal welfare advancements, jeopardize public health, and call into question the sovereignty of the states. As a result, the justices of the Supreme Court, who are currently deciding the case, must consider their decision carefully, as its consequences could be significant and widespread.

While Proposition 12 is currently California’s strongest farm animal protection law, the state previously passed other laws that gradually increased the rights of animals raised within and, in some cases, outside of its borders. Proposition 2, also known as the Prevention of Cruelty to Farm Animals Act, was passed in 2008 and required California livestock producers to raise hens, sows, and veal calves in enclosures that gave them enough room to stand up, lie down, turn around, and stretch their limbs without hitting the sides of their cage. [1] While it may seem like a bare-minimum requirement, livestock producers were permitted before Proposition 2 to utilize far more extreme confinement practices, so this step was important in securing improved farm animal welfare in the state. Later, in 2010, the California legislature passed Assembly Bill 1437, which outlined that all eggs sold in the state needed to be produced in compliance with the standards set by Proposition 2. [2] This enactment heightened California’s standards regarding animal welfare, specifically for the millions of hens impacted by the law’s provisions. [3] More recently, in 2018, California voters passed Proposition 12, which some consider to be the nation’s most powerful farm animal welfare law to date. [4] This law sets standards on the minimum amount of square footage egg-laying hens, sows, and veal calves are required to have within their enclosures if producers wish to sell the animal products derived from them in California. [5] This was an improvement over the less straightforward requirements under Proposition 2 that did not specify measurement-based standards. [6] Proposition 12 also now requires all egg-laying hen producers selling eggs in California to have cage-free facilities. [7]

Producers selling relevant animal products in California were required to comply with Proposition 12’s square footage provisions for chicken and veal by January 1, 2020, and the cage-free facility requirement for chickens on January 1, 2022. [8] However, the square footage requirement for sows, which was also supposed to go into effect on January 1, 2022, is currently not being enforced due to the significant backlash against it. More specifically, one of the barriers to enforcement has been a lawsuit, National Pork Producers Council v. Ross, filed in December 2019 by the National Pork Producers Council (NPCC), a trade association representing the U.S. pork industry. [9] The NPCC argued in their complaint that Proposition 12 violates the dormant Commerce Clause, which is used to prevent states from passing legislation that “discriminates against or excessively burdens interstate commerce.” [10] In other words, the NPCC is arguing that Proposition 12 unduly burdens out-of-state pork producers who sell their products in California by requiring them to comply with the heightened standards. The defendants in the case are the Secretary of the California Department of Food and Agriculture, the Director of the California Department of Public Health, and the California Attorney General. [11]

The history of the case is as follows: the district court dismissed the lawsuit, concluding that the petitioner did not show that Proposition 12 violates the Constitution, and the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s decision. [12] The U.S. Supreme Court agreed to hear the case, which was argued on October 11, 2022, and as of now, the case is still pending. [13]

The implications of this decision will undoubtedly be significant in many ways. If the Court affirms, it would be a considerable win for animal welfare in the nation. By placing the well-being of the animals impacted by Proposition 12 over the capitalistic desires of the pork industry, the Court would be showing the movement of the judiciary, as well as the rest of the government, toward a stance of greater support for animal welfare. The decision would set a precedent that could lead to further improvements in this domain, advancing the nation’s support for the humane treatment of animals.

Moreover, the Ross decision could impact public health by affecting livestock-raising practices. Laws improving farm animal welfare standards could change the typical operational practices on many livestock farms, which, due to the often high numbers of animals they confine in extremely small spaces, may contribute to a variety of safety-related issues. For example, large livestock operations, often called “factory farms,” contribute to air pollution, the contamination of water resources, and the spread of pathogens that may cause disease. [14] Furthermore, improving animal welfare standards could reduce the reliance of livestock producers on antibiotics by potentially changing unsanitary farming practices, which would be an important step in combating the antibiotic resistance crisis currently facing our world. [15]
However, some individuals have expressed concerns about the ramifications of upholding Proposition 12 on interstate commerce in general, arguing that the law could be followed by protectionist legislation impeding trade across state or national borders. [16] For example, Justice Amy Coney Barrett asked if California could pass a law prohibiting the sale of pork from companies that do not require their employees to be vaccinated, and Justice Elena Kagan argued that states could make immigration policies through laws like Proposition 12. [17] Nevertheless, in the words of animal welfare activist Steven Wise, this type of “slippery-slope argument” is commonplace in the legal world, and at the end of the day, the Court needs to focus on the issue at hand: the degree to which California can regulate animal products sold within its borders. [18]

To help determine whether or not Proposition 12 is constitutional, the Court seems to be leaning toward using the Pike Balancing Test, which outlines that a law is not permissible if, while effectuating a local public interest, it unduly burdens interstate commerce. [19] Unfortunately, weighing the relative merits of local interests and the interests regarding interstate commerce in such cases presents a considerable challenge, as it is an inherently subjective process. There is no easy, objective answer to the question of how a state can regulate the products sold within its borders. To complicate matters further, the particular local interest at stake in this case is unclear, as the law was passed through a ballot initiative. For example, a local interest in protecting public health by implementing confinement space standards would likely be more heavily weighted than a local interest in raising livestock in a more morally-sound manner, but it is not definite which of these interests is the most substantial underpinning of Proposition 12. [20] 

In the end, the ruling for National Pork Producers Council v. Ross will undoubtedly have major ramifications in the livestock industry and beyond. The Supreme Court should heavily consider the consequences of striking down Proposition 12, not only in terms of morality and public health but also in terms of state sovereignty. The dormant Commerce Clause is intended to prevent protectionism and discriminatory interstate economic practices, but not to overly restrict the actions of the states. [21] The word of the California voters cannot be ignored without diligent deliberation, and when one considers the importance of treating animals humanely and protecting the health of the public, an affirmation by the Court seems like the correct decision.

Notes:

1. “Proposition 2: Treatment of Farm Animals,” California Legislative Analyst's Office, July 17, 2008, https://lao.ca.gov/ballot/2008/2_11_2008.aspx.

2. Cal. Health & Safety Code § 25995-25997 (2010)

3. “Commodity Fact Sheet: California Egg Industry Association,” California Foundation for Agriculture in the Classroom, August 2022, https://cdn.agclassroom.org/ca/resources/fact/eggs.pdf.

4. Ashley Chang, “This Is What Prop 12 Means For Animals,” The Humane League, October 13, 2021, https://thehumaneleague.org/article/prop-12.

5. Proposition 12, Cal. Health & Safety Code § 25990-25994 (2022)

6. Cal. Health & Safety Code § 25990-25994

7. Cal. Health & Safety Code § 25990-25994

8. Jana Caracciolo, “What Is Going on with Prop 12?,” National Agricultural Law Center, December 2, 2022, https://nationalaglawcenter.org/what-is-going-on-with-prop-12/.

9. “California Proposition 12 Resource Hub,” National Pork Producers Council, April 10, 2023, https://nppc.org/ca-prop-12/.

10.  “Commerce Clause,” Legal Information Institute (Cornell Law School, July 2022), https://www.law.cornell.edu/wex/commerce_clause.; “National Pork Producers Council v. Ross." Oyez. Accessed April 21, 2023. https://www.oyez.org/cases/2022/21-468.

11.  “National Pork Producers Council v. Ross,” Oyez, Accessed April 21, 2023, https://www.oyez.org/cases/2022/21-468.

12. Oyez, “National Pork Producers Council v. Ross.”

13. Oyez, “National Pork Producers Council v. Ross.”

14. “Other Health Risks of the Meat Industry,” PETA, June 3, 2014, https://www.peta.org/issues/animals-used-for-food/health-risks-meat-industry/.

15. “Stop Using Antibiotics in Healthy Animals to Preserve Their Effectiveness,” World Health Organization (World Health Organization, November 7, 2017), https://www.who.int/news/item/07-11-2017-stop-using-antibiotics-in-healthy-animals-to-prevent-the-spread-of-antibiotic-resistance.

16. Rich Barlow, “Your Bacon Shouldn't Be the Product of Animal Cruelty, Says Animal Rights Activist and LAW Alum,” Boston University, December 1, 2022, https://www.bu.edu/articles/2022/supreme-court-case-banning-inhumane-confinement/.

17. “Transcript of Oral Argument: National Pork Producers Council v. Ross,” Oyez, Accessed April 21, 2023, https://www.oyez.org/cases/2022/21-468.

18. Barlow, “Animal Rights Activist.”

19. Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).

20. Oyez, “Transcript of Oral Argument.”

21. Elizabeth Wydra, Brian Frazelle, and Brianne Gorod, “National Pork Producers Council v. Ross,” Constitutional Accountability Center, October 12, 2022, https://www.theusconstitution.org/litigation/national-pork-producers-council-v-ross/.

BIBLIOGRAPHY:

Barlow, Rich. “Your Bacon Shouldn't Be the Product of Animal Cruelty, Says Animal Rights Activist and LAW Alum.” Boston University, December 1, 2022. https://www.bu.edu/articles/2022/supreme-court-case-banning-inhumane-confinement/. 

“California Proposition 12 Resource Hub.” National Pork Producers Council, April 10, 2023. https://nppc.org/ca-prop-12/. 

Caracciolo, Jana. “What Is Going on with Prop 12?” National Agricultural Law Center, December 2, 2022. https://nationalaglawcenter.org/what-is-going-on-with-prop-12/. 

Chang, Ashley. “This Is What Prop 12 Means For Animals.” The Humane League, October 13, 2021. https://thehumaneleague.org/article/prop-12. 

“Commerce Clause.” Legal Information Institute. Cornell Law School, July 2022. https://www.law.cornell.edu/wex/commerce_clause. 

“Commodity Fact Sheet: California Egg Industry Association.” California Foundation for Agriculture in the Classroom, August 2022. https://cdn.agclassroom.org/ca/resources/fact/eggs.pdf. 

“Stop Using Antibiotics in Healthy Animals to Preserve Their Effectiveness.” World Health Organization. World Health Organization, November 7, 2017. https://www.who.int/news/item/07-11-2017-stop-using-antibiotics-in-healthy-animals-to-prevent-the-spread-of-antibiotic-resistance. 

“Other Health Risks of the Meat Industry.” PETA, June 3, 2014. https://www.peta.org/issues/animals-used-for-food/health-risks-meat-industry/. 

“Proposition 2: Treatment of Farm Animals.” California Legislative Analyst's Office, July 17, 2008. https://lao.ca.gov/ballot/2008/2_11_2008.aspx. 

Wydra, Elizabeth, Brian Frazelle, and Brianne Gorod. “National Pork Producers Council v. Ross.” Constitutional Accountability Center, October 12, 2022. https://www.theusconstitution.org/litigation/national-pork-producers-council-v-ross/.

The Role of Power in Impeding Justice

By: Isabel Niemer

Edited By: alexandra dickerman and emily yang

Many of the major issues in law can be traced back to the reason for its existence—  human nature. Law is distinctly human, leading its problems to reflect the problems of humans on an individual and a group scale. In On the Genealogy of Morality, Nietzsche hypothesizes that human nature is oriented towards wanting power.[1] Nietzsche explains that the fulfillment of this innate desire is what separates the aristocrats of society from the common folk. Whether or not you believe that this desire for power is morally sound, the desire certainly exists for many. This unquenchable thirst for power and consequential separation of the powerful from the powerless can be seen in the inequality of the judgments of our laws. This unequal footing leads to our society falling short of justice, which I believe is the biggest legal issue of today. 

The dichotomy of the powerful versus the powerless can be seen in both the social construction of race and interest convergence. The movement in and out of race categories corresponds with the changing of power dynamics. When certain people are grouped into a more powerful race, they enjoy the privileges of that race. In law, this could mean fewer convictions, more sympathy from jurors, or less surveillance. These advantages are what keep racism baked into society. The powerful are the only ones who can change the laws and systems, but they have disincentives to make these changes. Inequality is easy to brush over when power is at stake.  Additionally, this racism that is prevalent in law has ramifications beyond individual judgments. Higher criminalization of Black men leads to higher surveillance of Black neighborhoods, and this pattern reinforces itself.[2] It destroys Black families and communities, which reinforces the power of white people in American society.

Racism can also impact justice through the juror selection process, which can be seen in the case of Andre Thomas.[3] Thomas, a Black man, killed his white wife and their two children in a schizophrenic break and subsequently gouged his eyes out and attempted to kill himself. Three of the selected jurors for Thomas’ case were openly against interracial marriage, and Thomas has been on death row since his conviction. As can be seen in this case and others, the presence of racist inclinations, which ultimately stem from power dynamics, can lead to the difference between life or death. 

Another example of the unequal footing of law can be found in legal disputes involving big corporations and smaller entities. In theory, the courtroom should be an equal playing field for both parties involved. In practice, though, the party with the most power often has a much greater chance of winning these disputes.[4] With increased power comes increased intelligence, familiarity with the court system, and rules tailored to one’s particular needs. This inequality leads to judgments skewing heavily in favor of big corporations, further reinforcing their power and impeding justice.  

For example, when Mattel’s toys were found to have lead in them, Mattel lobbied for Congress to impose expensive lead testing upon all toymakers.[5] While this seemed like a good deed, Mattel really wanted to push small toymakers out of the market. Congress then stipulated that these requirements would not apply to toymakers that make less than 7,500 toys per year. This stipulation protected small toymakers, but still ultimately helped Mattel by discouraging toymakers from growing their business and becoming serious competitors.  

In situations where the legal system cannot adequately tackle injustice, power imbalances  can become further normalized without reprimand. One example lies in sexual harassment cases; because there is not often sufficient evidence or incentive to file these cases, 99.8% of people who experience sexual harassment in the workplace never do.[6] This leads to little incentive for  those in power to follow the law. The power imbalance between bosses and workers thus is often heightened to illegal levels, and as a result, justice will likely never be achieved until sexual harassment in the workforce is addressed properly.

Subjectivity is especially present in sexual harassment cases, where judges are often able to mold what is considered “severe and pervasive” and even throw out cases. For example, a court dismissed a sexual harassment case where a boss threatened to rape a worker multiple times and talked about his genitals.[7] The court reasoned because these comments occurred over a 10 day period, they could not classify the harassment as “pervasive.” We have to check the power of both bosses and judges to help those who have been sexually harassed get the justice  they deserve.  

To keep human nature in law, subjectivity is inevitable. This subjectivity allows for nuance in judgments, which is often necessary to come to the right conclusion in cases. However, many factors play a role in preventing objectivity, which is necessary for true justice, in judgments. Many of these hindrances to objectivity stem from imbalances of power. This power arises from human nature, so it would be massively overambitious to try to eliminate power dynamics altogether. But like us, law should attempt to right its wrongs, minimize missteps, and continuously strive for self-improvement.

Notes:

1. Friedrich Nietzsche, Kieth Ansell-Pearson, and Carol Diethe, ‘On the Genealogy of Morality’ and Other Writings, (Cambridge: Cambridge University Press, 2017). 

2. William J. Chambliss, “Policing the Ghetto Underclass: The Politics of Law and Law Enforcement,” Social Problems 41, no. 2 (May 1994): 177-94. 

3. Ella Wiley, “How Racism in the Courtroom Produces Wrongful Convictions and  Mass Incarceration,” Legal Defense Fund, July 20, 2022,  https://www.naacpldf.org/judicial-process-failures/. 

4. Marc Galanter, “Why the ‘Haves’ Come out Ahead: Speculations on the Limits of  Legal Change,” Law & Society Review 9, no. 1 (Autumn, 1974): 95-160. 

5. John Stossel, “How Big Business Uses Big Government to Kill Competition,”  Reason, July 7, 2021, https://reason.com/2021/07/07/how-big-business uses-big-government-to-kill-competition/. 

6. Carly McCann, Donald Tomaskovic-Devey, & M.V. Lee Badgett, “Employer’s Responses to Sexual Harassment”, UMass Amherst, https://www.umass.edu/employmentequity/employers-responses-sexual-harassment.

7. Yuki Noguchi, “Sexual Harassment Cases Often Rejected by Courts,” NPR,  November 28, 2017, https://www.npr.org/2017/11/28/565743374/sexual harassment-cases-often-rejected-by-courts.

BIBLIOGRAPHY:

Chambliss, William J. “Policing the Ghetto Underclass: The Politics of Law and Law Enforcement.” Social Problems 41, no. 2 (1994): 177–94. https://doi.org/10.2307/3096929. 

Galanter, Marc. “Why the ‘Haves’ Come out Ahead: Speculations on the Limits of Legal Change.” Law & Society Review 9, no. 1 (1974): 95–160. https://doi.org/10.2307/3053023. 

McCann, Carly, Donald Tomaskovic-Devey, and M.V. Lee Badgett. “Employer’s Responses to Sexual Harassment”, UMass Amherst, https://www.umass.edu/employmentequity/employers-responses-sexual-harassment.

Nietzsche, Friedrich, Keith Ansell-Pearson, and Carol Diethe. 'On the Genealogy of Morality'  and Other Writings. Cambridge: Cambridge University Press, 2017.

Noguchi, Yuki. “Sexual Harassment Cases Often Rejected by Courts.” NPR, November 28, 2017. https://www.npr.org/2017/11/28/565743374/sexual-harassment-cases-often rejected-by-courts.  

Stossel, John. “How Big Business Uses Big Government to Kill Competition.” Reason.com, July  7, 2021. https://reason.com/2021/07/07/how-big-business-uses-big-government-to-kill competition/.  

Wiley, Ella. “How Racism in the Courtroom Produces Wrongful Convictions and Mass  Incarceration.” Legal Defense Fund, November 22, 2022. https://www.naacpldf.org/ judicial-process-failures/.

An Overview of the Constitutionality of Illinois’ Elimination of Cash Bail

By: Sarah Wejman

Edited By: claire quan and emily yang

In December of 2022, Illinois was on track to become the first state to eliminate cash bail for defendants awaiting criminal trials with the Pretrial Fairness Act. Under this law, presumption of release was made the default. Part of the larger Illinois Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act, additional issues addressed in the bill included limiting “when defendants can be deemed flight risks…and preventing police from arresting non-violent trespassers.” [1] 

However, the progress of this legislation was impeded after a Kankakee County judge ruled that the Pretrial Fairness Act was unconstitutional. After dozens of state attorneys had filed lawsuits in efforts to prevent the elimination of cash bail, Circuit Judge Thomas Cunnington found that the act violated the separation of powers principle. In a 36-page opinion, Judge Cunnington stated that the Illinois Supreme Court affirmed judges’ “independent, inherent authority to deny or revoke bail to ‘preserve the orderly process of criminal procedure.’” [2] He further stated that the more appropriate way to go about changing the bail in the pretrial release process would be to allow the electorate of Illinois to vote to amend the state's constitution. [3] In the 65 counties from which attorneys represented in this case, cash bail was to remain. 

However, the case was appealed, and as a result of policy inconsistencies among counties due to the pending decision, the Illinois Supreme Court issued a stay on the Pretrial Fairness Act on December 31, citing an effort to “maintain consistent pretrial procedures throughout Illinois.” [4] The remainder of the bill took into effect the following day.

The proposal and near passing of removing cash bail in Illinois was quite controversial. Proponents of the bill, having long awaited it, were extremely disappointed; they argued that the use of cash bail disproportionately favors the wealthy, forcing those who are not as financially well off to be imprisoned. According to the U.S. Commission on Civil Rights, over 60% of defendants are imprisoned before their trial because they are unable to afford bail. [5] Cook County Public Defender Sharone Mitchell expressed that “[t]he use of money as a determining factor in whether somebody is going to be in or out of jail before trial is really just an abhorrent practice.” [6] 

For many individuals who are unable to afford the bail, prison time can be a majorly disruptive force. One individual, Lavette Mayes, a 52 year old mother of two from the South Side of Chicago, told ABC News the burdens she endured: “I lost my business. I lost housing. I lost transportation, my vehicles. I lost everything just in the 571 days that I was incarcerated [awaiting trial].” [7] She was arrested after engaging in a physical fight with her mother-in-law during a divorce, which resulted in a trip to the hospital for both of them. Despite having no previous record, her bail was set at $25,000. Consequently, she spent over a year in prison before being able to afford bail with the help of her family and a charity organization. Ultimately, she was released and put on home monitoring. [8] Previously, she had a clean record, and expressed her disbelief as to why she was assigned such a costly bail. 

However, there were many who supported cash bail to start with and were adamant that it remain in place. Given concerns over Chicago’s crime rates, opponents of the bill feared it would release dangerous criminals back onto the street and fuel illegal drug use. Orland Park Mayor Keith Pekau stated, “[w]hen I said that this is the most dangerous law I've ever seen, I believe that.” [9]

Despite these concerns, the act proposed exceptions that would keep violent criminals in jail until trial. These would include cases where there was “force against another person”, such as murder, criminal sexual assault, robbery, burglary, home invasion, and vehicular invasion. [10] 

Additionally, studies indicate that, in counties and cities with bail reform, there was no correlated rise in violent crime. A report conducted by the Major Cities Chiefs Association found that “out of the 66 largest police jurisdictions, 63 saw an increase in at least one category of violent crimes in 2020,” but the majority of these still had cash bail. [11] 

One advocate against abolishing cash bail, Illinois State Senator John Curran (R-Downers Grove) was in concurrence with the opposition on the issue that wealth shouldn’t determine whether one should be released from prison while awaiting trial. However, he states that judges still need, “broad discretion in making determinations on public safety with regards to who is detained and who isn’t.” [12] Despite this being an important role that the judge should have, it can still be fulfilled without cash bail because the right for judges to imprison somebody who is deemed dangerous to the public would not be revoked.

Although eliminating cash bail can initially seem dangerous, the evidence thus far shows that the increase in crime is unrelated to whether cash bail is present; rather, most major cities have an increase in crime due to other reasons such as the pandemic and an increasing distrust in police. Furthermore, judges are still given the power to imprison those who are a threat to society or individuals before their trial. Despite the legislation being a violation of separation of powers, there is still opportunity for bail reform. Instead of worsening poverty by putting nonviolent offenders in prison before their trial and posting infeasible bails, Illinois should add the issue of cash bail to their ballot and let the people vote to amend the state’s constitution.

Notes:

1. Miller, Andrew. “Controversial SAFE-T Act Takes Effect in Illinois Minus Key Provision Stayed by Judge.” Fox News, January 1, 2023. https://www.foxnews.com/us/controversial-safe-t-act-takes-effect-illinois-minus-key-pro vision-stayed-judge. 

2. Rowe v. Raoul, No. 22-CH-16 (2022). 

3. Gorner, Jeremy, and Madeline Buckley. “Kankakee County Judge Finds That Elimination of Cash Bail Provision in SAFE-T Act Is Unconstitutional.” Chicago Tribune, December 28, 2022. https://www.chicagotribune.com/politics/ct-illinois-bail-lawsuit-ruling-20221229-hxjlwtg elnft5ew2lpcsma7wzy-story.html. 

4. Miller, “Controversial SAFE-T Act” 

5. The United States Commission on Civil Rights’ Office of Civil Rights Evaluation. “The Civil Rights Implications of Cash Bail,” January 20, 2022. 

6. Miller, “Controversial SAFE-T Act”

7. Moeder, Nicole, Devin Dwyer, and Isabella Meneses. “Illinois Set to Become 1st State to Eliminate Cash Bail.” ABC News, December 19, 2022. https://abcnews.go.com/Politics/illinois-set-become-1st-state-eliminate-cash-bail/story?id =95421342. 

8. Moeder, “Illinois Set to Become” 

9. Moeder, “Illinois Set to Become” 

10. Miller, “Controversial SAFE-T Act” 

11. Masterson, Matt. “Cash Bail Is Ending (or Partially Staying?) in Illinois. Here’s What You Need to Know.” WTTW News, December 28, 2022. https://news.wttw.com/2022/12/28/cash-bail-ending-or-partially-staying-illinois-here-s-w hat-you-need-know.

12. Lybrand, Holmes, and Tara Subramaniam. “Fact-Checking Claims Bail Reform Is Driving Increase in Violent Crime.” CNN, July 7, 2021. https://www.cnn.com/2021/07/07/politics/bail-reform-violent-crime-fact-check/index.htm l. 

13. Paddock, Blair. “Lawmakers Discuss Pros, Cons of Ending Cash Bail.” WTTW News, January 19, 2021. https://news.wttw.com/2021/01/19/lawmakers-discuss-pros-cons-ending-cash-bail.

    BIBLIOGRAPHY:

    Gorner, Jeremy, and Madeline Buckley. “Kankakee County Judge Finds That Elimination of Cash Bail Provision in SAFE-T Act Is Unconstitutional.” Chicago Tribune, December 28, 2022. 

    https://www.chicagotribune.com/politics/ct-illinois-bail-lawsuit-ruling-20221229-hxjlwtg elnft5ew2lpcsma7wzy-story.html. 

    Lybrand, Holmes, and Tara Subramaniam. “Fact-Checking Claims Bail Reform Is Driving Increase in Violent Crime.” CNN, July 7, 2021. 

    https://www.cnn.com/2021/07/07/politics/bail-reform-violent-crime-fact-check/index.htm l. 

    Masterson, Matt. “Cash Bail Is Ending (or Partially Staying?) in Illinois. Here’s What You Need to Know.” WTTW News, December 28, 2022. 

    https://news.wttw.com/2022/12/28/cash-bail-ending-or-partially-staying-illinois-here-s-w hat-you-need-know. 

    Miller, Andrew. “Controversial SAFE-T Act Takes Effect in Illinois Minus Key Provision Stayed by Judge.” Fox News, January 1, 2023. 

    https://www.foxnews.com/us/controversial-safe-t-act-takes-effect-illinois-minus-key-pro vision-stayed-judge. 

    Moeder, Nicole, Devin Dwyer, and Isabella Meneses. “Illinois Set to Become 1st State to Eliminate Cash Bail.” ABC News, December 19, 2022. 

    https://abcnews.go.com/Politics/illinois-set-become-1st-state-eliminate-cash-bail/story?id =95421342. ‌

    Paddock, Blair. “Lawmakers Discuss Pros, Cons of Ending Cash Bail.” WTTW News, January 19, 2021. https://news.wttw.com/2021/01/19/lawmakers-discuss-pros-cons-ending-cash-bail.

    Rowe v. Raoul, No. 22-CH-16 (2022). 

    The United States Commission on Civil Rights’ Office of Civil Rights Evaluation. “The Civil Rights Implications of Cash Bail,” January 20, 2022.

    https://www.usccr.gov/files/2022-01/USCCR-Bail-Reform-Report-01-20-22.pdf.

The Legal Repercussions Surrounding the Ohio Train Derailment

By: Sarah Wejman

Edited By: shiny han and anna westfall

On February 3, the nation was shocked by pictures of a dark black cloud looming over an unsuspecting American town. The Norfolk Southern rail line had a thirty-eight-car freight train traveling through East Palestine, Ohio when it derailed. Eleven of these cars contained hazardous chemicals, which caused spillages into waterways or on the ground. Five of those had a particularly potent chemical named vinyl chloride. [1] Vinyl chloride is a manufactured substance that is a colorless gas at room temperature and is very flammable. [2] In the US, vinyl chloride is used to make polyvinyl chloride (PVC), which is used to make plastic and vinyl products like pipes, wire, cable coatings, and packaging materials. Authorities, including Ohio governor Mike DeWine, determined that it would be best to purposefully detonate the chemical releases of vinyl chloride for safety and environmental precautions, which caused the eerie, dark sky. 

Although the Environmental Protection Agency (EPA) claims that there aren’t many immediate effects of the derailment because they found the water and air to be safe as of now, scientists do not understand the effects of vinyl chloride fully. Since 1976, the EPA has regulated vinyl chloride because it has implications of being a causal agent to angiosarcoma and other serious carcinogenic and non-carcinogenic disorders. [3] 

The EPA has declared that it is safe for residents to move back into their homes; however, people are suffering from the resulting pollution and economic downturn it has caused. There have been six class action lawsuits thus far that have been filed against Norfolk Southern, with the premise of claims being due to a few main reasons: a loss of income after evacuations, exposure to cancer-causing chemicals, and feeling unsafe in their homes. [4] Rick Feezle, a member of one of the class action lawsuits, has experienced a raspy voice and chest pain as a result of the incident, while his wife has had sore throats and headaches. Feezle, an owner of two local businesses, remarked, “Nobody can tell us what we should do other than ‘It’s safe, go head on back in there.’And the fish are dying and animals are dying and I can hardly talk and my chest hurts.” [5] Another lawsuit emphasized the shocking volume of vinyl chloride released, stating that Norfolk, “discharged more cancer-causing vinyl chloride into the environment in the course of a week than all industrial emitters combined did in the course of a year.” [6] Rene Rocha, an attorney at Morgan & Morgan Lawyers, has met with plaintiffs in lawsuits and notes that residents within a several miles radius have suffered from ongoing health conditions after the derailment. He mentions that “when you talk to them, they run out of breath or start coughing.” 

Norfolk Southern announced in a statement on February 14th that they would be making a $1 million charitable fund to support the community by working with local and state officials to distribute the donations properly. They will additionally provide $1.2 million in financial assistance to about 900 families impacted, as well as local businesses in need. [7] Recently, Norfolk President and CEO Alan Shaw released the following statement: 

“We are cleaning up the site in an environmentally responsible way, reimbursing residents affected by the derailment, and working with members of the community to identify what is needed to help East Palestine recover and thrive." 

Although it is certainly helpful that Norfolk is stepping in financially, the incident as a whole prompts the bigger question about the United States’ protocols with such hazardous chemicals and whether we should even be using them in the first place. Cutting back on emissions or trying to be more environmentally conscious will practically do nothing if one accident of this magnitude happens every year, as the progress made will simply be ruined. Although the headlines of the derailment have dissipated and the event is “old news,” those impacted will likely be continually affected in some way for the rest of their lives, such as chronic medical conditions and resulting financial hardships. We must use this incident as a lesson and a call to action to improve our practices with harmful chemicals and evaluate the risk versus reward of using them from an environmental standpoint.

Notes:

1. Jones, Benji. “Yes, the Ohio Train Wreck Is an Environmental Disaster. No, It’s Not Chernobyl.” Vox, February 18, 2023. https://www.vox.com/science/2023/2/18/23603471/east-palestine-ohio-derailment-water-contamination-health.

2. Agency for Toxic Substances and Disease Registry. “PUBLIC HEALTH STATEMENT Vinyl Chloride,” July 2006. https://www.atsdr.cdc.gov/ToxProfiles/tp20-c1-b.pdf.

3. US Environmental Protection Agency. “Vinyl Chloride: National Emission Standards for Hazardous Air Pollutants (NESHAP).” www.epa.gov, July 1, 2015. https://www.epa.gov/stationary-sources-air-pollution/vinyl-chloride-national-emission-standards-hazardous-air.

4. Feezle et al. v. Norfolk Southern Corporation, 4:23-cv-00242 U.S (2023)

5. Bendix, Aria, and Uwa Ede-Osifo. “As Residents near Ohio Train Derailment Begin to File Lawsuits, Some Report Coughs or Chest Pain.” NBC News, February 18, 2023. https://www.nbcnews.com/news/us-news/lawsuits-filed-ohio-train-derailment-rcna71192.

6. Canterbury et al. v. Norfolk Southern Corporation, 4:23-cv-00298 U.S (2023)–

7. Norfolk Southern Corporation. “Norfolk Southern Establishes $1 Million Fund to Support East Palestine Community.” Cision, February 14, 2023. https://www.prnewswire.com/news-releases/norfolk-southern-establishes-1-million-fund-to-support-east-palestine-community-301746912.html.

   BIBLIOGRAPHY:

   Agency for Toxic Substances and Disease Registry. “PUBLIC HEALTH STATEMENT Vinyl Chloride,” July 2006. https://www.atsdr.cdc.gov/ToxProfiles/tp20-c1-b.pdf.

   Bendix, Aria, and Uwa Ede-Osifo. “As Residents near Ohio Train Derailment Begin to File Lawsuits, Some Report Coughs or Chest Pain.” NBC News, February 18, 2023. https://www.nbcnews.com/news/us-news/lawsuits-filed-ohio-train-derailment-rcna71192.

   Canterbury et al. v. Norfolk Southern Corporation, 4:23-cv-00298 U.S (2023)

   Feezle et al. v. Norfolk Southern Corporation, 4:23-cv-00242 U.S (2023)

   Jones, Benji. “Yes, the Ohio Train Wreck Is an Environmental Disaster. No, It’s Not Chernobyl.” Vox, February 18, 2023. https://www.vox.com/science/2023/2/18/23603471/east-palestine-ohio-derailment-water-contamination-health.

   Norfolk Southern Corporation. “Norfolk Southern Establishes $1 Million Fund to Support East Palestine Community.” Cision, February 14, 2023. https://www.prnewswire.com/news-releases/norfolk-southern-establishes-1-million-fund-to-support-east-palestine-community-301746912.html.

   US Environmental Protection Agency. “Vinyl Chloride: National Emission Standards for Hazardous Air Pollutants (NESHAP).” www.epa.gov, July 1, 2015. https://www.epa.gov/stationary-sources-air-pollution/vinyl-chloride-national-emission-standards-hazardous-air.