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by Michael Kraten, PhD, CPA

Do you remember George Orwell’s classic novel Animal Farm? In that fable of a farm that is managed by its own livestock, the pigs become the leaders of the rural community. Although that didn’t quite occur last week, a pig protection law did manage to survive a Supreme Court decision that may impact the future of sustainability regulation.

Namely, the Court ruled that the government of California can outlaw the in-state sale of pork from pigs raised anywhere under cruel conditions. Specifically, pregnant pigs held in extremely small “gestation cages” are declared under California law to live inhumanely.

Pork producers opposed the California law. Under a legal doctrine called the Dormant Commerce Clause, the producers argued that the state was excessively limiting interstate commerce because virtually all pork sold in California is derived from pigs raised out-of-state.

The Supreme Court ruled for California in an extremely close five-to-four vote. Even more striking was the unusual composition of the five concurring justices; the group included both relatively conservative individuals (Barrett, Gorsuch, Thomas) and their traditionally liberal colleagues (Kagan, Sotomayor).

How may the decision impact the sustainability sector? For starters, the ethical treatment of animals represents a supply chain concern. There is also a second consideration; as noted by the Editorial Board of the Wall Street Journal, “the majority opinion will embolden more states to impose their social policies on the commerce of other states.

That means that a large state with no automobile manufacturing facilities may find it easier to ban vehicles with gasoline engines from being sold within its borders. Likewise, it may be able to ban electricity that is transmitted into the state from bordering jurisdictions if the power is generated by the burning of coal.

Of course, such bans may yet be overruled by future lawsuits that rely on other legal doctrines. For the moment, though, it appears that an unusual group of Supreme Court justices have united behind the supporters of pigs in preventing the Dormant Commerce Clause from being employed in this manner.

Originally published at All rights reserved by author.