Meat production and agriculture provide a major and obvious target for environmental regulation and legislation. According to the EPA, agricultural production was the source of one tenth of the United States’ greenhouse gas emissions in 2021, over a quarter of which came from livestock.^[1] American meat producers would naturally seem to become a regulatory target for the administrative state, either through continuing or extending existing environmental measures for farms, or by encouraging a shift towards meat alternatives. After all, plant-based meat alternatives carry significantly less environmental impact than the meat products they replace, and other alternatives like meat cultures and hybrid sources could be environmentally promising long-term.^[2]

 

However, recent agency skepticism, especially the Court’s embrace of the Major Questions Doctrine (MQD) in West Virginia v. EPA, is seen to signal a new major barrier for regulatory agency action.^[3] Under the MQD, “clear congressional authorization” is required in “extraordinary” cases, as determined by the scope of the authority asserted by the agency, as well as its economic and political significance.^[4] It certainly seems possible that a new regulatory scheme designed to affect major change in American agriculture could be seen as “extraordinary” or economically and politically significant under the MQD. After all, cattle production, for example, is a massive economic driver in the United States, with nearly 100 billion dollars in cash receipts.^[5]

 

At the same time, however, the Court has not automatically rejected major regulation of American farms, suggesting that environmental regulation could have another path forward. This past year, in National Pork Producers Council v. Ross, the Supreme Court upheld a California ballot initiative which forbids the sale of pork products produced out of compliance with certain health and safety requirements – a decision seen as a major win for future environmental regulation.^[6] The Court refused to adopt an “extraterritoriality doctrine” which, under Dormant Commerce Clause case law, would have rendered unconstitutional any state law with the “practical effect of controlling commerce outside the State”.^[7] It would seem, then, that states could flex their own agricultural and economic power to a certain extent to affect environmental change.

 

It seems unlikely, however, that meat producers will soon be burdened with some major, per se nationwide regulatory scheme. As we can see in fights over how meat alternatives are marketed to consumers, there is major political support for meat producers as we currently find them. In 2023, Texas passed a law sponsored by the Texas Farm Bureau requiring clear labeling of meat alternatives.^[8] This industry is quickly becoming a legal battleground. In the past few years dozens of states have passed laws imposing branding or labeling requirements of meat alternatives, as advocacy organizations and companies like Tofurky mount legal challenges in response.^[9] Justice Gorsuch remarked in his opinion in Ross that should the California law have the practical impact of imposing a national rule, Congress could intervene through federal legislation.^[10] This is more likely for specific issues in this environmental space than for sweeping and impactful reform. Maybe a law like Senator Fisher’s proposed Real MEAT Act, supported by organizations like the U.S. Cattlemen’s Association and the Nebraska Farm Bureau, could set clear nationwide standards.^[11] Even if such a law were to pass, however, the fight over labeling seems symptomatic of the bigger fight over America’s meat industry, especially as technology advances and climate change becomes more and more pressing.

 

These emerging trends – a hostility towards major agency action, deference to state regulation, and growing legal debates over meat and meat alternatives – combine to produce conditions which could give rise to a battle between state governments over sustainable farming and environmentally friendly eating. As the Court has held, an “extraterritoriality doctrine” makes no sense in a world where any commercial regulation would impact some out-of-state producer.^[12] So, states looking to invest heavily in environmentally friendly meat alternatives or to impose stricter environmental regulations on farming could quickly butt heads with states looking to support associations of meat producers, and the impact of their respective legislation on each other. Cultivated meat is projected to become a multi-billion-dollar industry within the decade, and the Department of Agriculture this past year approved the production and sale of this meat.^[13] But states more heavily invested in the existing, hundred-billion-dollar industry of meat production will not quickly be overwhelmed. The margins of this battle are yet to be determined, but it seems certain that states will continue to battle over the meat Americans eat for years to come.

 

^[1] EPA, Sources of Greenhouse Gas Emissions (Nov. 16, 2023), https://www.epa.gov/ghgemissions/sources-greenhouse-gas-emissions.

^[2] Sergiy Smetana, et al. Meat substitutes: Resource demands and environmental footprints, Resources, conservation, and recycling vol. 190 (2023) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9936781/.

^[3] Richard L. Revesz, SCOTUS Ruling in West Virginia v. EPA Threatens All Regulation, Bloomberg Law (Jul. 8, 2022), https://news.bloomberglaw.com/environment-and-energy/scotus-ruling-in-west-virginia-v-epa-threatens-all-regulation.

^[4] West Virginia v. EPA, 142 S. Ct. 2587, 2595 (2022).

^[5] Economic Research Service, Sector at a Glance (Aug. 30, 2023), https://www.ers.usda.gov/topics/animal-products/cattle-beef/sector-at-a-glance/.

^[6] Christine Billy, Pigs Fly! SCOTUS Upholds State Sovereignty in CA Pork Case, State Energy & Environmental Impact Center NYU School of Law (May 17, 2023), https://stateimpactcenter.org/insights/pigs-fly-scotus-upholds-state-sovereignty-in-ca-pork-case.

^[7] National Pork Producers Council v. Ross, 598 U.S. 356, 371.

^[8] Sydney Sheffiled, Interpretive Summary: Texas Governor signs meat labelling law, American Society of Animal Science (Jun. 29, 2023), https://www.asas.org/taking-stock/blog-post/taking-stock/2023/06/29/interpretive-summary-texas-governor-signs-meat-labelling-law#:~:text=Texas%20Governor%20Greg%20Abbott%20recently,as%20the%20product%20being%20sold.

^[9] Jonah Engel Bromwich and Sanam Yar, The Fake Meat War, The New York Times (July 25, 2019), https://www.nytimes.com/2019/07/25/style/plant-based-meat-law.html.

^[10] Ross, 598 U.S. 356 at 382-83.

^[11] Deb Fisher, Fischer Reintroduces Real MEAT Act to End Deceptive Labeling of Imitation Meat Products, Stop Smear Campaign Against Real Beef and Pork, (Nov. 14, 2023), https://www.fischer.senate.gov/public/index.cfm/news?ID=F5B32E37-3E9E-4272-96A7-836F70A36C37.

^[12] See Ross, 598 U.S. 356

^[13] Linda Qiu, U.S. Approves the Sale of Lab-Grown Chicken, The New York Times (Jun. 21, 2023), https://www.nytimes.com/2023/06/21/us/lab-grown-meat-sale-approval.html.

[14] https://ichef.bbci.co.uk/news/1536/cpsprodpb/4A64/production/_121444091_gettyimages-585518028.jpg.webp