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The Trump Administration’s Legal Moves to Prevent a Meat Shortage, Explained The Trump Administration’s Legal Moves to Prevent a Meat Shortage, Explained
(3 days later)
WASHINGTON — The Trump administration moved this week to try to mitigate the effects from the shutdowns of beef, pork and poultry processing facilities amid the Covid-19 pandemic that have potentially endangered an important part of the nation’s food supply chain. But the policy moves have generated confusion.WASHINGTON — The Trump administration moved this week to try to mitigate the effects from the shutdowns of beef, pork and poultry processing facilities amid the Covid-19 pandemic that have potentially endangered an important part of the nation’s food supply chain. But the policy moves have generated confusion.
“We are, in many regards, in uncharted territory,” said James E. Baker, a former legal adviser to the National Security Council and a professor of national security law at Syracuse University.“We are, in many regards, in uncharted territory,” said James E. Baker, a former legal adviser to the National Security Council and a professor of national security law at Syracuse University.
No. Some news outlets reported, citing unnamed administration officials, that President Trump was simply ordering meatpacking plants to continue operating. But that dramatic understanding of his action was inaccurate, according to legal experts.No. Some news outlets reported, citing unnamed administration officials, that President Trump was simply ordering meatpacking plants to continue operating. But that dramatic understanding of his action was inaccurate, according to legal experts.
“This is more symbolism than substance,” said Stephen I. Vladeck, a professor of national security law at the University of Texas at Austin. “He’s opening the door for the executive branch to take some far more specific actions vis-à-vis the meat plants, but the order itself doesn’t do anything.”“This is more symbolism than substance,” said Stephen I. Vladeck, a professor of national security law at the University of Texas at Austin. “He’s opening the door for the executive branch to take some far more specific actions vis-à-vis the meat plants, but the order itself doesn’t do anything.”
The Trump administration did two interacting things to reduce risks that might prompt plants to shut down.The Trump administration did two interacting things to reduce risks that might prompt plants to shut down.
First, the Occupational Safety and Health Administration and the Centers for Disease Control and Prevention issued joint interim guidance laying out detailed safety standards for meat processing facilities in light of the coronavirus outbreak.First, the Occupational Safety and Health Administration and the Centers for Disease Control and Prevention issued joint interim guidance laying out detailed safety standards for meat processing facilities in light of the coronavirus outbreak.
Second, Mr. Trump signed an executive order declaring that meat was a “scarce and critical material essential to the national defense” under the Defense Production Act, while delegating to the secretary of agriculture, Sonny Perdue, the authority to use powers granted by that law to help meat processors continue operations.Second, Mr. Trump signed an executive order declaring that meat was a “scarce and critical material essential to the national defense” under the Defense Production Act, while delegating to the secretary of agriculture, Sonny Perdue, the authority to use powers granted by that law to help meat processors continue operations.
If meat processing plants adhere to the standards, they could reduce both the risk of future widespread outbreaks at the plants and the risk of legal liability to employers if workers nevertheless get sick.If meat processing plants adhere to the standards, they could reduce both the risk of future widespread outbreaks at the plants and the risk of legal liability to employers if workers nevertheless get sick.
The precautions include requiring workers to wear masks; reconfiguring communal work spaces to keep people at least six feet apart and erecting barriers between them “if feasible”; staggering shifts to encourage social distancing; disinfecting regularly; removing fans that might blow viruses from one person to the next; screening and monitoring the work force for the illness; and following various steps if a worker shows symptoms of illness.The precautions include requiring workers to wear masks; reconfiguring communal work spaces to keep people at least six feet apart and erecting barriers between them “if feasible”; staggering shifts to encourage social distancing; disinfecting regularly; removing fans that might blow viruses from one person to the next; screening and monitoring the work force for the illness; and following various steps if a worker shows symptoms of illness.
If employers try in good faith to adhere to the standards, OSHA has said it will not cite the owner of a meat processing plant for operating an unsafe workplace.If employers try in good faith to adhere to the standards, OSHA has said it will not cite the owner of a meat processing plant for operating an unsafe workplace.
Moreover, if sick workers or their estates file lawsuits claiming that they were exposed to the virus at work because of their employer’s negligence, following these standards will provide a defense in court: The Trump administration has offered to have a Labor Department official testify as a witness at trial that the federal government thinks the company was not at fault.Moreover, if sick workers or their estates file lawsuits claiming that they were exposed to the virus at work because of their employer’s negligence, following these standards will provide a defense in court: The Trump administration has offered to have a Labor Department official testify as a witness at trial that the federal government thinks the company was not at fault.
For now, nothing concrete. But it could repel any hypothetical future attempt by state officials to shut down a meat processing plant by imposing more stringent health and safety rules than the new federal guidance, and then accusing the facility of failing to live up to local standards.For now, nothing concrete. But it could repel any hypothetical future attempt by state officials to shut down a meat processing plant by imposing more stringent health and safety rules than the new federal guidance, and then accusing the facility of failing to live up to local standards.
The Defense Production Act permits the federal government to issue orders allocating where “scarce and critical material essential to the national defense” should go. The idea appears to be that Mr. Perdue could use this power to instruct a specific meat producer to allocate its product to grocery wholesalers in line with its existing contracts — thereby bestowing a federal gloss on those arrangements.The Defense Production Act permits the federal government to issue orders allocating where “scarce and critical material essential to the national defense” should go. The idea appears to be that Mr. Perdue could use this power to instruct a specific meat producer to allocate its product to grocery wholesalers in line with its existing contracts — thereby bestowing a federal gloss on those arrangements.
Updated August 12, 2020 Updated August 17, 2020
While some of the meatpacking plants have shut down voluntarily after outbreaks to clean their facilities, others have been ordered closed by local health officials. But those closures happened before the federal guidelines. Going forward, if state or local regulators created stricter rules, this maneuver could provide a basis to argue to a judge that the federal standards pre-empted the local ones.While some of the meatpacking plants have shut down voluntarily after outbreaks to clean their facilities, others have been ordered closed by local health officials. But those closures happened before the federal guidelines. Going forward, if state or local regulators created stricter rules, this maneuver could provide a basis to argue to a judge that the federal standards pre-empted the local ones.
How that would go is an open question. A 1950 ruling from a Federal District Court in Minnesota suggested that if there were a conflict with local rules, a Defense Production Act arrangement would prevail. But Mr. Baker noted that the act’s allocation powers “have not been used in a long time, nor have they been fully litigated.”How that would go is an open question. A 1950 ruling from a Federal District Court in Minnesota suggested that if there were a conflict with local rules, a Defense Production Act arrangement would prevail. But Mr. Baker noted that the act’s allocation powers “have not been used in a long time, nor have they been fully litigated.”
Still, he added, it might not be put to the test because there would also be pressures on all involved — the federal and state governments, companies and workers — to reach an accommodation rather than get mired in court.Still, he added, it might not be put to the test because there would also be pressures on all involved — the federal and state governments, companies and workers — to reach an accommodation rather than get mired in court.
“It seems that the public interest is in public health and protein, not just one or the other,” he said.“It seems that the public interest is in public health and protein, not just one or the other,” he said.
That is unclear.That is unclear.
“Where the U.S.D.A. does actually issue a whole bunch of orders,” Mr. Vladeck said, “it would be hard but not impossible to hold the industry liable for things they did that they had to do because of the orders.”“Where the U.S.D.A. does actually issue a whole bunch of orders,” Mr. Vladeck said, “it would be hard but not impossible to hold the industry liable for things they did that they had to do because of the orders.”
One part of the Defense Production Act states that nobody “shall be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with a rule, regulation, or order issued pursuant to this act.” That could be interpreted broadly as providing meatpacking plants with immunity from monetary damages if they were operating under a Defense Production Act allocation order and in compliance with the OSHA safety guidelines.One part of the Defense Production Act states that nobody “shall be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with a rule, regulation, or order issued pursuant to this act.” That could be interpreted broadly as providing meatpacking plants with immunity from monetary damages if they were operating under a Defense Production Act allocation order and in compliance with the OSHA safety guidelines.
However, there are several cases in which the meaning of this phrase has been weighed in court in which both district and appeals court judges have interpreted that part of the law much more narrowly. They ruled that it does not bar negligence lawsuits, but rather it merely precludes lawsuits over contracts that went unfulfilled because of a Defense Production Act order to prioritize something the government wanted done.However, there are several cases in which the meaning of this phrase has been weighed in court in which both district and appeals court judges have interpreted that part of the law much more narrowly. They ruled that it does not bar negligence lawsuits, but rather it merely precludes lawsuits over contracts that went unfulfilled because of a Defense Production Act order to prioritize something the government wanted done.
David Yaffe-Bellany contributed reporting from Princeton Junction, N.J.David Yaffe-Bellany contributed reporting from Princeton Junction, N.J.