As zoos, animal research laboratories, and other facilities that hold animals shutter across the country in the midst of the Covid-19 pandemic, what’s to become of the animals left behind? Ideally, facilities that exploit animals for human gain would have contingency plans in place to care for those animals during the shutdown. But the reality is that many probably don’t — and U.S. federal regulations do not require them to.
We’ve seen the dire consequences of this regulatory blind spot before. In 2005, when the Audubon Aquarium of the Americas in New Orleans went into an emergency shutdown in the aftermath of Hurricane Katrina, thousands of animals that were left behind perished. Perhaps even more tragic, workers returned days later to find some animals still clinging to life amid the overwhelming stench of rotting corpses, despite having been abandoned and subjected to temperatures of up to 140 degrees Fahrenheit. A few years prior, nearly 35,000 animals at the Texas Medical Center — including monkeys, dogs, and rabbits — drowned during Tropical Storm Allison. And in 2012, thousands of mice at a New York University research center drowned in Hurricane Sandy-related flooding.
It’s not a stretch to imagine that similar scenes could play out in the coming weeks. Of the nearly 11,000 federally-regulated facilities across the country that hold animals for research, commercial pet breeding, or exhibition purposes and are therefore subject to the Animal Welfare Act (AWA), only a fraction are accredited by bodies that require preparedness plans. Fewer than 10 percent of animal exhibitors are accredited by the Association of Zoos and Aquariums, for example, and fewer than 8 percent of facilities purporting to be animal sanctuaries are accredited by the Global Federation of Animal Sanctuaries.
Based on my experience, many, if not most, of these facilities are under-resourced. And although the Covid-19 crisis has come on more gradually than previous emergencies, many facilities have been slow to respond. For example, the notorious and already financially struggling Greater Wynnewood Exotic Animal Park, featured in the Netflix docuseries “Tiger King,” just shuttered its doors last week due to Covid-19. According to the most recent available U.S. Department of Agriculture (USDA) inspection report, the animal park holds more than 200 captive wild animals, including more than 100 big cats. The risks to these animals are further aggravated by the USDA’s recent announcement that it will be limiting inspections during the Covid-19 outbreak — and the new discovery that Covid-19 is transmissible to big cats. Some facilities, especially laboratories, are responding to the crisis by simply killing off thousands of animals.
In 2008, the USDA proposed a rule that would have required all facilities subject to the AWA to prepare contingency plans for emergencies or disasters. “Preparedness,” the agency observed, “can reduce harm caused to animals and loss of life.” It took more than four years, but at the end of 2012, the agency finalized the contingency planning rule. It gave regulated entities until the following July to “develop, document, and follow an appropriate plan to provide for the humane handling, treatment, transportation, housing, and care of their animals in the event of an emergency or disaster.” The rule also required facilities to train personnel in implementing the plans.
Some facilities, especially laboratories, are responding to the crisis by simply killing off thousands of animals.
But just as the requirement would have gone into effect, the USDA abruptly, and with virtually no explanation, stayed its rule indefinitely. In an enigmatic announcement, the agency said that it would “undertake a review and analysis” of the contingency plan requirements to consider their impact on businesses.
The stay seemingly came in response to the grumblings of a particularly vociferous magician, Marty Hahne, who was featured in a story by The Washington Post. Hahne complained that the USDA rule would force him to prepare an emergency plan for the rabbit he hauled around for shows. Within hours of his story appearing in The Post, the agency went from defending the rule to putting it on hold. (To my knowledge, the USDA never indicated that its decision was influenced by the Washington Post article.)
Following the USDA’s stay, Congress sprang into action. Within six months, it had amended the AWA to exempt de minimis, or small-scale, activities like those of the vociferous magician — not just from the contingency plan requirement but from all AWA regulation. Congress emphasized that this action would eliminate “a direct obstacle to lifting the stay on the agency’s contingency rule,” and that it expected the USDA to take action on the rule “without delay.”
Despite that language, the USDA didn’t get around to implementing the de minimis exemption until 2018, more than four years later. And although the USDA has acknowledged that the exemption “makes it possible to lift the stay on the agency’s contingency plan rule,” it has yet to do so.
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Today, more than seven years after it was finalized, the rule requiring animal facilities to prepare contingency plans remains on hold.
A bill currently pending in Congress would finally force the USDA to do what it said it would do long ago. If passed, H.R. 1042, the bipartisan Prepared Act (“Providing Responsible Emergency Plans for Animals at Risk of Emerging Disasters Act”), would require the USDA to swiftly enact regulations to require AWA-regulated facilities to have emergency contingency plans.
Of course, an act of Congress shouldn’t be necessary. But these days, Congress seems to be the only governing body capable of forcing the USDA’s hand. It may already be too late for the many animals who are being stranded as facilities close during the Covid-19 pandemic. But we will inevitably face future emergencies and disasters. The least we can do for animals who are exploited for human gain is to make sure that, in times of chaos, they are not left behind to languish and rot.
Delcianna J. Winders is an assistant professor at Lewis & Clark Law School, where she directs the Animal Law Litigation Clinic.