USDA’s Food Safety and inspection Service failed to explain why it did not consider worker safety in a 2019 rule allowing pork slaughter facilities to increase line speeds, a federal judge in Minnesota ruled Wednesday.
U.S. District Judge Joan Ericksen’s order came on USDA’s motion to dismiss the case, so its immediate impact is simply to allow the lawsuit to proceed on the worker safety claim. However, she appears prepared to rule USDA violated the Administrative Procedure Act, finding the FSIS final rule was “internally inconsistent.”
“America’s pork workers won an important victory with this ruling as our lawsuit moves forward to stop the USDA’s dangerous line speed rule,” United Food and Commercial Workers Union International President Marc Perrone said. “As we confront the coronavirus outbreak, these workers are more important than ever to protecting our food supply chain.”
The North American Meat Institute said it was reviewing the decision but would "reach out with further comment." The Justice Department did not immediately respond to a request for comment. This story will be updated with any reaction.
The lawsuit was brought by UFCW International and three locals of the United Food and Commercial Workers union who represent workers at four swine processing plants in Minnesota, Iowa, Missouri, and Oklahoma.
FSIS’s proposed rule asked for comments on the effects of increased line speeds on worker safety, the judge noted. But in its final rule, it declined to address those comments. FSIS “simply asserted, in a conclusory fashion, that it had no legal authority to regulate safety,” Ericksen said.
Because of that lack of authority, FSIS said it was justified in not addressing worker safety in its final rule. But the judge said, “This circular logic fails to provide a reasonable explanation.”
Ericksen noted the final rule established a new requirement “that any facility operating under the [New Swine Inspection System] submit an annual attestation ‘to the management member of the local FSIS circuit safety committee stating that the establishment maintains a program to monitor and document any work-related conditions of establishment workers.’”
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“FSIS cannot both lack authority to consider worker safety and hold authority to enact safety-related requirements,” Ericksen said. “This internal inconsistency suggests that FSIS engaged in arbitrary decisionmaking.”
But then she went further, stating that “FSIS’s failure to recognize that inconsistency and explain its reasoning renders its decision to disregard worker safety arbitrary and capricious.”
Ericksen dismissed one of the claims in the lawsuit, ruling that the plaintiffs could not establish standing to challenge the rule based on a reduction in FSIS inspectors.
UFCW attorney Adam Pulver, with Public Citizen Litigation Group, said although technically the judge’s decision “only held that we stated a claim, her conclusions that the agency's reasoning was insufficient and lacked rational explanation would seem to resolve the ultimate issue in the case.”
FSIS “cannot fix those flaws in the course of this litigation,” Pulver said. “We will argue that the entire NSIS rule must be set aside for the very reasons the court explained.”
Pulver said he doesn’t think settlement is likely, “even though the court's decision yesterday would seem to strongly foreshadow the result.”
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