ALBUQUERQUE, N.M.An agency within the U.S. Department of Agriculture (USDA) lacks discretion to deny requests to inspect horse slaughter facilities if they meet requirements under the Federal Meat Inspection Act, rendering an environmental review essentially meaningless, government lawyers argue.

Citing the failure of the Food Safety and Inspection Service (FSIS) to follow the National Environmental Policy Act (NEPA), animal welfare groupsincluding Front Range Equine Rescue, Horses for Life Foundation and Humane Society of the United States among othershave sued the agency in federal court.

The lawsuit has at least temporarily thwarted the plans of three facilities in Iowa, Missouri and New Mexico to slaughter horses for human consumption. The controversial practice has infuriated animal rights groups and divided Native American tribes. 

In a brief filed last month, Justice Department lawyers argue NEPA doesn't apply to its horse slaughter oversight because FSIS lacks the authority to impose environmental conditions or deny a proposal for inspection on environmental grounds.

Since federal law requires FSIS to grant inspections to facilities that meet eligibility requirements under the Federal Meat Inspection Act, "environmental considerations pursuant to a NEPA analysis could not have changed FSIS' decision," the government lawyers wrote.

The animal rights groups that have sued FSIS vigorously disagree, and a federal judge is leaning in their favor. In temporary restraining orders that enjoin FSIS from dispatching inspectors to the horse slaughter facilities, Chief U.S. District Judge Christine Armijo has found plaintiffs are likely to prevail on their claims.

The judge is expected to make her final decisionwhether to grant a permanent injunctionby the end of October. A final ruling is likely to be challenged before the U.S. Court of Appeals for the 10th Circuit.

Plaintiffs have challenged FSIS's decisions to grant inspections and a directive that relates to a drug residue testing program for equines. FSIS Directive 6130.1 provides instructions to government personnel on how to inspect horses before and after they are slaughtered, including instructions for drug residue testing.

In the lawsuit, plaintiffs cite a number of environmental hazards associated with horse slaughter facilities before three plants closed six years ago.

"As described in the record, individuals in the vicinity of previous horse slaughter plants were forced to endure a noxious stench, dealt with blood in streams, and sometimes even found blood and horse tissue running through their water faucets," plaintiffs wrote in a brief. "Whether this will happen again is precisely the question that should be explored in a properly prepared NEPA document."

NEPA

NEPA typically requires federal agencies to assess the environmental consequences of a proposed action through an "environmental assessment" (EA) and/or a more comprehensive "environmental impact statement" (EIS). FSIS has conducted neither an EA nor an EIS in connection with the horse slaughter facilities or the agency's drug residue testing program.  

NEPA's requirements don't apply to a federal agency if a proposed action will not have a "significant" impact either individually or cumulatively on the human environment. Regulations excuse FSIS from preparing an EA or EIS unless the agency's administrator, Al Almanza, decides "an action may have a significant environmental effect," according to a memo from FSIS that granted federal meat inspection services to Roswell, N.M.-based Valley Meat Company, LLC.

FSIS's action "is purely ministerial" since it must grant federal inspection if a facility has met statutory and regulatory requirements, the agency concluded in the June 27 memo.

"A grant of federal inspection likewise does not and will not allow FSIS to exercise sufficient control over the commercial horse slaughter activities at Valley Meat such that the grant will constitute a major federal action that triggers NEPA requirements," the memo declared.

The agency explained it only has authority to regulate a facility to the extent necessary to verify that meat produced for human consumption is properly labeled, packaged and wholesome as well as free of adulterants.

Drug Residues  

Plaintiffs have expressed fears that the horse slaughter plants are potentially dangerous in part because drugs that are administered to horses are not safe for human consumption and have the potential to contaminate "local ecosystems and water and soil supplies."

Between 1996 and 2006, when FSIS tested horses for drugs before funding for horse inspections was withdrawn, few equines tested positive, according to the agency. But plaintiffs contend FSIS failed to test the animals for many drugs that are commonly administered to horses.

Documents submitted to the federal government have listed 115 drugs and categories of drugs that have been approved for use in horses and have been known to cause problems for humans, according to Bruce Wagman, an attorney representing a number of plaintiffs in the lawsuit.

The Attorney General of New Mexico has expressed similar fears, pointing out in a letter to Valley Meat that horse meat containing such dangerous substances as the anti-inflammatory drug phenylbutazone (PBZ) would be considered "adulterated" in violation of state law.

FSIS has defended the drug testing program, citing a number of safeguardsincluding random tests of horses after they are slaughteredthat are intended to protect the public from exposure to harmful chemicals and pesticide residues.

State agencies and the U.S. Food and Drug Administration (FDA) investigate companies whose meat has tested positive for unpermitted drug residues, and FDA has authority to prosecute a business and take other enforcement action, FSIS pointed out.

Although FSIS has acknowledged it will conduct fewer samples under its new program, the agency said it will analyze them for a larger number of chemical compounds. But plaintiffs gripe the new program "ignores several dozen other substances commonly given to horses that may be harmful to humans."