Ahead of her Oct. 13 video conference on swine slaughter line speed, a federal judge in Minnesota is welcoming outside parties to offer their opinions about the case.

Judge Joan N. Ericksen did not yell “Olly Olly oxen free,” but she might as well have by welcoming  Amicus Curiae filings from several states, the National Pork Producers Council, and the North American Meat Institute. 

United Food and Commercial Workers Union (UFCW) v. the U.S. Department of Agriculture is a 1-year-old challenge to the Food Safety and Inspection Service’s reform of swine slaughter inspections.  In April, Judge Ericksen narrowed the UFCW lawsuit down to the Line-speed issue for market hogs. The remaining issue is whether FSIS was correct in removing line-speed limits from its regulations because they do not involve food safety or whether the action puts employees at greater risk of injuries.

The public interest law firm, Public Citizen, filed the lawsuit in October 2019 in U.S. District Court for the District of Minnesota on behalf of UFCW’s national organization and three local unions. It claims that the new FSIS rules USDA rules put employees at risk of injuries and put the safety of the food at risk by reducing the number of government-employed safety inspectors.

The challenge came just days after USDA published the New Swine Slaughter Inspection System (NSIS). The FSIS contends the changes would improve hog slaughter effectiveness, makes better use of agency resources, and permit industry innovation by allowing processors to reconfigure evisceration lines.

There’s a wide range of outcomes possible for the Oct. 13 video conference, everything from a summary judgment for the plaintiffs to dismissing the challenge to the defense entirely.   

The USDA leadership does not think the union plaintiffs, including specific individuals named, are even qualified to bring the case.

“Plaintiffs lack associational standing because none of the ten members they have identified would have individual standing. Nine of the ten do not face an imminent injury because they work at non-NSIS slaughter establishments,” writes Department of Justice (DOJ) attorney Joseph J. Demott for USDA. “Even assuming their employers will someday convert to NSIS, it is speculative whether that conversion would require these individuals to perform dangerous tasks more quickly or in closer proximity to other workers. The one identified member who currently works at an NSIS establishment does not work on the evisceration line and has not explained how his employer’s conversion to NSIS substantially increased his risk of injury. Moreover, the alleged injuries are not traceable to the Final Rule, but to establishments’ voluntary operational decisions.”

“FSIS decided to eliminate evisceration-line speed limits in NSIS establishments because they are not necessary to protect food safety and because FSIS lacks authority to require actions that relate solely to worker safety,” Demott continued.   “This decision was reasonable and consistent with FSIS’s longstanding interpretation of its regulatory authority, as reflected by a legal memorandum in the administrative record.’

If the judge sides with the plaintiffs, however, the DOJ argues that it would be inappropriate to vacate the new swine slaughter rule in its entirety. 

Public Citizen’s Adam R. Pulver argues for the plaintiffs, saying: “To the extent that the agency refused to consider the collateral effects of actions within its regulatory authority, its failure to do so was insufficiently reasoned, internally inconsistent, and an unexplained reversal from its previous position.”

“In support of its motion for summary judgment and in opposition to plaintiffs’ motion for summary judgment, Defendant U.S. Department of Agriculture (USDA) makes a new argument in defense of its rule. USDA argues that, once FSIS decided that eliminating maximum line speeds for NSIS would not negatively impact food safety, it was required to eliminate the maximum speeds— regardless of the impact on worker safety. Not only is this argument incorrect and unsupported, it is a post hoc rationalization on which the agency cannot properly rely to defend a rule on judicial review,” Pulver wrote.

“Plaintiffs are labor organizations that represent the workers at all stages of slaughter and production at eighteen of the forty plants that USDA expects to convert to NSIS — including those at five plants that have affirmatively informed USDA of their intent to convert to NSIS. Plaintiffs have standing to bring this action because, as occupational health and safety experts have explained, eliminating line speed maximums will put workers like plaintiffs’ members at substantially increased risk of musculoskeletal injury and lacerations. USDA’s speculation that these plants might take steps that might minimize the increase of harm to plaintiffs’ members — speculation contradicted by evidence in the record — does not deprive them of standing”

Seven states with Democratic attorneys general signed on to an amicus brief in support of UFCW.  They include California, Illinois,  Maryland, Massachusetts, Michigan, Minnesota and Virginia.  The industry’s two largest  associations also received Amicus status.

The UFCW represents about 250,000 workers in the meatpacking and food processing industries including  30,000 workers in pork plants.  About  70 percent of all hogs slaughtered and processed in the United States are handled by UCFW members.

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