Shearman & Sterling is representing the Humane Society of the United States (HSUS), pro bono, in a lawsuit challenging the adequacy of the United States Department of Agriculture’s (USDA) response plan to a national outbreak of Highly Pathogenic Avian Influenza (HPAI), more commonly known as “bird flu.” The lawsuit alleges that the USDA Animal Plant Health Inspection Service (APHIS) violated the National Environmental Policy Act (NEPA) by failing to consider and assess all possible options for containing the spread of HPAI to animals and humans.
In late 2014, HPAI began spreading so rapidly among US poultry farms that by mid-2015, roughly 50 million chickens and turkeys had been infected with HPAI. In July 2015, USDA APHIS issued an environmental assessment in which it evaluated the environmental and human impacts of the HPAI outbreak and potential government responses. In response, HSUS submitted a comment letter suggesting that USDA APHIS consider implementing measures aimed at preventing the spread of HPAI, such as incentivizing cage free, low-density environments for birds. HSUS also requested a more comprehensive assessment of the mass deployment of dangerous practices authorized under USDA APHIS’s preferred response plan, including burying poultry carcasses in unlined pits, burning them through open-air incineration, and the use of ventilation shutdown—a process which entails slowly suffocating and cooking the birds to death. USDA APHIS ignored these suggestions, opting instead for a plan that, according to the lawsuit, indemnifies farmers with high-density poultry farms and encourages the use of hazardous and unnecessarily inhumane methods of killing and disposing of HPAI-infected birds.
The lawsuit seeks a declaration that USDA APHIS’s response violated NEPA and an order requiring USDA APHIS to prepare an environmental impact statement that satisfies the requirement of NEPA.