Lastly, while not completely covered in this review, the review introduces the agreement on a High Seas Treaty to protect the world’s oceans. The Treaty came about after ten years of negotiations and ushers in a new global concern for marine life and the environmental impact of unprotected fishing in international waters. The United Nations Secretary-General noted it will:
- Set up a framework for the fair and equitable sharing of benefits arising from activities with respect to marine genetic resources and digital sequence information on marine genetic resources of areas beyond national jurisdiction.
- Enable the establishment of area-based management tools, including marine protected areas, to conserve and sustainably manage vital habitats and species in the high seas and the international seabed area.
- Ensure that environmental impacts of activities in areas beyond national jurisdiction are assessed and considered in decision-making [and] provides, for the first time, an international legal framework for the assessment of the cumulative impacts of activities and the consequences of climate change, ocean acidification, and related impacts in areas beyond national jurisdiction.
- Facilitate cooperation in capacity-building and the transfer of marine technology to assist Parties, in particular developing States Parties, in achieving the objectives of the Agreement.
Countries must still ratify the treaty, which will take time, but the agreement is a historic step in conserving the world’s oceans.
II. Pigs Win at the U.S. Supreme Court in a Decision Reflecting the Rationale Adopted by the WTO Adjudicatory Bodies in the Seal Products Case
Throughout the world, humans slaughter hundreds of millions of animals every day for food, including 900,000 cows, 1.4 million goats, 1.7 million sheep, 3.8 million pigs, 11.8 million ducks, 202 million chickens, and hundreds of millions of fish. The majority of these animals suffer not only at slaughter but throughout their lives as they are born and raised in concentrated animal feeding operations (CAFOs) where staggeringly large numbers of animals are crowded into confined spaces, creating unhealthy and inhumane conditions, including ninety-eight percent of all pigs raised in the United States.
Pigs are intelligent animals with complex and social lives, strong maternal instincts, and a life expectancy of twenty years. Yet, they are among the most abused animals, subjected to an inhumane confinement method—the gestation crate, a metal crate so small that the pig is unable to turn around. Pork producers keep mother pigs, or sows, in these gestation crates for their entire lives, artificially impregnating them continuously, removing their piglets at just a few weeks old, and killing them after just two years.
In 2018, Californians made a strong statement in opposition to the cruel confinement of farm animals by approving Proposition 12 (Prop 12) by sixty-three percent. The law established minimum space requirements for sows, egg-laying hens, and veal calves, and prohibited the commercial sale in California of specified products derived from animals confined in a noncomplying manner. Although Prop 12 provides only twenty-four square-feet for sows, just enough room for them to lie down, stand up, turn around, and fully extending their limbs, and exempted some forty-two percent of all pork products sold in the state, it is among the most protective laws for farmed pigs in the US.
Soon thereafter, the National Pork Producers Council (NPPC) filed suit challenging Prop 12, arguing that it impermissibly burdens interstate commerce. NPPC argued that California makes up thirteen percent of the national market for pork yet produces only a small fraction of pork and thus most of the compliance costs, which effectively requires a shift to group housing, would be borne by out-of-state pork producers. Notably, NPPC conceded that twenty-eight percent of the industry has already converted to group housing for pigs. The District Court granted California’s motion to dismiss for failure to state a claim, holding that the complaint failed to demonstrate a substantial burden on interstate commerce. The Ninth Circuit affirmed, and the Supreme Court granted certiorari, later affirming the decision.
At the Supreme Court level, the Court first reviewed the Commerce Clause. The U.S. Constitution grants Congress the power “to regulate commerce . . . among the several states.” States have “reserved powers to regulate commerce in their own jurisdiction that may affect interstate commerce; [however, the] Commerce Clause might impliedly bar certain types of state economic regulation . . . even in the absence of congressional legislation.” Specifically, discriminatory state regulation driven by economic protectionism is barred, as antidiscrimination lies at the core of modern dormant Commerce Clause jurisprudence. All Justices agreed that Prop 12 was not discriminatory as it treated in-state and out-of-state pork producers identically.
Thus, the Court, after rejecting NPPC’s per se extraterritorial argument, turned to the Pike analysis to first determine if Prop 12 imposes a substantial burden on interstate commerce and, if so, if such burden is excessive in relation to the putative local benefits. Justice Gorsuch noted that the dormant Commerce Clause does not give “a roving license for federal courts to decide what activities are appropriate for state and local government to undertake.” Justice Gorsuch explained that judges are not institutionally suited to wield such freewheeling power in this context given the economic costs and noneconomic moral and health benefits of the law are incommensurable. “In a functioning democracy, policy choices like these usually belong to the people and their elected representatives.” Justice Gorsuch, joined by three Justices, held that plaintiffs failed to allege facts plausibly demonstrating that Prop 12 imposes a substantial burden on interstate commerce, noting that the “Dormant Commerce Clause does not protect a particular structure or method or operation” and thus Pike balancing was unnecessary.
Justice Gorsuch’s analysis properly accommodated the inherent normative pluralism of each state in a manner consistent with the analysis of the World Trade Organization (WTO) decision in the Seal Products case, a case strikingly like the NPPC case but in the international trade arena. In 2009, the European Union (“EU”) banned the import of products made from seals—noting the inherently cruel way seals are hunted and killed—to prevent seal suffering and to uphold the morality of its citizens against such cruelty. Canada and Norway challenged the ban as a restriction on trade illegal under the General Agreement on Tariffs and Trade (GATT).
Similar to Dormant Commerce Clause jurisprudence, the WTO regime is founded on principles of non-discrimination including “the principle that no foreign business should be treated less favorably than a domestic business.” Nations generally may not restrict trade with other nations unless permitted under specific exceptions, including GATT Article XX(a)—when necessary as a matter of “public morals.” The EU argued in defense that the ban was lawful under this exception.
The WTO adjudicatory bodies—the panel and the appellate body—held that the seal ban could be justified as a matter of public morals. They held that animal welfare is of paramount significance, protected within EU treaties, and thus is a matter of a state’s public morals. Moreover, the ban was necessary finding that the protection of morals is of the highest importance, and, although the ban was highly restrictive, it contributed to the goal and such contribution need not be material.
While doctrinally distinct, the NPPC decision is consistent with the Seal Products case in promoting the pluralism of individual states while protecting them from protectionist laws. The Commerce Clause and the WTO provisions are founded on nondiscrimination principles. Both allow states to enact nondiscriminatory laws that may burden interstate or international commerce to protect the morals of their citizens so long as the benefits to the state either outweigh the burden on commerce in the US or meet the necessity test in the WTO. Further, the Court and the WTO bodies recognized the legitimacy of the noneconomic goals of protecting animal welfare and the morality of citizens and understood their roles as targeting protectionist laws while allowing states to strike the appropriate policy balance for their respective jurisdictions.
III. FDA Modernization Act 2.0: Animal Testing No Longer Required for New Drugs
The use of animals in biomedical and scientific research for new drug development has long-amassed concern for the ethics, efficacy, and efficiency of the methodologies used. Due to these concerns and amid consumer demand for “cruelty-free” products which do not conduct tests on animals, many countries across the globe have begun to research, develop, and invest in alternatives to animal models and enact legislation to reduce or ban the use of animals in toxicity tests. Despite the development of nonanimal testing models, toxicity tests on both rodent and nonrodent animals have been a requirement for new drugs to advance to human clinical trials and achieve Food and Drug Administration (FDA) authorization in the United States—until now.
On December 29, 2022, the FDA enacted the Modernization Act 2.0 (Officially titled “The Food and Drug Omnibus Reform Act of 2022”), introducing significant changes to the Federal Food, Drug, and Cosmetic Act (FFDCA) by replacing “preclinical tests (including tests on animals)” with “nonclinical tests,” effectively eliminating the requirement for toxicity tests to be performed on both rodent and nonrodent species before moving onto human clinical trials for new drugs subject to FDA approval. The amended language now allows for nonanimal methodologies, such as organ chips, computer models, and other nonhuman or human biology-based test methods to satisfy pre-clinical requirements alongside traditional animal models, marking a significant change to drug and biologics regulation in the United States.
Prior to the Act’s passage, the FDA required “adequate information on the chemistry and manufacturing of the drug, controls available for the drug, and primary data tabulations from preclinical tests (including tests on animals) or human studies” before human clinical trials could be conducted. In an FDA Remand Response to a lawsuit by Vanda Pharmaceuticals Inc. (“Vanda”) in 2019, the FDA further clarified that the “scientific minimum [to advance to human] clinical investigations” was a nine-month rodent study. In contrast, the FDA simultaneously expresses a commitment to advancing the development and use of alternatives to animal models in efforts to reduce the need for animal testing, a responsibility that is carried out primarily by its Alternative Methods Working Group. The FDA’s dedication to advancing alternative models is further reflected in their 2023 budget, in which the FDA requested an additional $5 million to develop qualified alternative methods for regulatory use that can replace, reduce, and refine animal testing. The FDA clarified these discrepancies in their position on the usefulness of animal models in protecting human health and safety, by stating that while “animal studies can be critical to evaluating the potential for toxicity, safety and, at times, effectiveness, of FDA-regulated products,” nonanimal alternative methodologies have the potential to “provide both more timely and more predictive information to help accelerate product development, prevent products with increased toxicological risk from reaching the market, assess efficacy, provide insight into disease processes, and enhance emergency preparedness for the benefit of U.S. patients, consumers, and animals.”
The Modernization Act 2.0 has additional implications for the use of nonanimal models in achieving FDA approval for new drugs. Among these are:
Ethical Considerations: The new FDA rules underscore the growing importance of ethical considerations in drug development. By introducing new pathways to authorization that do not require the use of animals in toxicity tests, there is potential for reduced reliance on animal testing. This enables the industry to demonstrate its commitment to minimizing harm to animals and meet consumer demand for “cruelty free” products.
Accelerated Drug Development: Nonanimal test methods, such as computer modeling, can expedite drug development by providing faster and more cost-effective evaluations of drug safety and efficacy.
Increased Innovation: In conjunction with funding allocated to explore new methodologies, the new rules encourage innovation in nonclinical testing methods. As researchers explore and develop new techniques, a diverse range of more ethical, accurate, and efficient testing options will become available.
Harmonization with Global Standards: The amended language aligns U.S. regulations with global standards that favor nonanimal testing methods, facilitating international trade and regulatory compliance.
Data Quality: The new rules emphasize how nonclinical tests can offer more accurate and reproducible data, reducing the likelihood of false positives or negatives in drug safety assessments. In one study, for example, approximately eighty-nine percent of novel drugs that passed animal testing requirements failed in human clinical trials, with approximately one-half of those failures due to unanticipated human toxicity.
Potential for Reduced Costs: While the initial transition to nonanimal testing methods may require investment in new technologies and training, the long-term cost savings could be substantial.
Regulatory Adaptation: The new rules will necessitate that regulatory agencies, including the FDA, adapt their guidelines and evaluation processes to accommodate new testing methods. This will likely involve additional updates to the regulatory framework and guidance documents that will better facilitate the adoption of nonanimal models.
The Modernization Act 2.0 also comes with additional challenges and considerations regarding the role of the FDA in protecting public safety, such as:
Validation: Ensuring the accuracy and reliability of nonclinical tests is crucial. The industry and regulatory agencies must establish validation criteria to maintain data integrity and to ensure the health and safety of humans involved in new drug clinical trials and the general public.
Standardization: Standardizing nonclinical testing methods will be essential for regulatory consistency and reliability across different laboratories and organizations.
Education and Training: Professionals in the pharmaceutical and biotechnology industries will require education and training to utilize new nonclinical testing methods effectively.
Regulatory Oversight: Regulatory agencies will need to develop clear guidelines for the acceptance of nonclinical test data and ensure that these tests meet the necessary standards.
International Cooperation: The pharmaceutical industry operates globally, and international cooperation will be vital to harmonize testing standards and facilitate the acceptance of nonclinical test data in multiple jurisdictions.
It is important to note that while the use of animal models will no longer be required to achieve approval from the FDA to proceed to human clinical trials in the new drug authorization process, this does not necessarily ensure that fewer animals will be used in new drug research, nor that researchers will choose nonanimal methods more frequently. To receive funding, researchers may be inclined to continue to use animal models, especially in cases where potential funders view animal models as more traditional, accurate, or reliable. Nonetheless, removing the requirements for FDA approval enables researchers and biotechnology companies that wish to avoid the use of animal models to move forward with human clinical trials in their pursuit of FDA approval.
In conclusion, the new FDA rules represent a significant step toward a more ethical, efficient, and innovative approach to new drug and biologics authorization. By redefining the necessary tests for FDA new drug authorization and encouraging the adoption of alternative methods, the FDA is paving the way for a future where animal testing becomes obsolete in the evaluation of drug safety and efficacy.
IV. Haarlem, Netherlands, is the First City in the World to Ban Meat Advertising
Food systems have a global goal to support the ever-growing population of eight billion people. Still, any action or policy must be done in a climate-oriented fashion to reduce and prevent the disproportionate impact of such climate change on developing countries. So far, the food systems have failed to achieve this goal.
A. A Novel Strategy to Combat Climate Change: Haarlem Bans Meat Advertisements
In September 2022, Haarlem, a Dutch city of 160,000 with a meat-eating population of almost ninety-five percent, moved towards the implementation of a motion submitted by the GroenLinks party on November 11, 2021. This motion banned meat product advertisements for meat sourced from industrial agricultural farming.
The ban takes effect in 2024 and applies to all public places, including billboards, advertisement screens, and bus/tram stops. It adopts similar rules already in place in Amsterdam, Leiden, and the Hague, which are all Dutch cities that have banned advertisements for air travel and fossil fuels due to their environmental impact.
In 2022 Haarlem declared climate change a threat, and the meat advertisement ban policy followed. Climate change has significant consequences for the Netherlands. In particular, as a low-lying country, Dutch coasts are set to notice the effects of rising sea levels sooner rather than later. The government lists sea level rise, heavy rainfall, drought, heatwaves, and new diseases in the area, such as dengue, as critical threats. The country’s annual mean temperature rose 2.3 C between 1901 and 2020, while yearly rainfall increased twenty-one percent from 1906 to 2020. Haarlem GroenLinks councilor Ziggy Klazes, who tabled the motion, stated, “Meat is just as harmful to the environment, and we cannot tell people there is a climate crisis and encourage them to buy products that are part of the cause.”
In response, the meat sector implemented a campaign titled “Nederland Vleesland,” which translates to “Netherlands Food Country,” to promote meat eating for financial benefits as a matter of taste.
B. Terms of Haarlem’s Meat Advertisement Ban Motion
Haarlem’s motion primarily addresses the intensive livestock farming that contributes to climate change.
But, fossil fuels also contribute to climate change, and the motion added that although Haarlem has declared a climate crisis and has switched to electric public transportation, numerous fossil fuel advertisements remain on public bus and shelter products. Therefore, the motion added a request that the Haarlem Municipal executive enter into discussions with the operator of the advertisements in the Haarlem bus shelters and public spaces about no longer allowing advertisements for products that contribute excessively to CO2 emissions, such as air travel. These means of transportation mainly use fossil fuels and related industry products.
The 2024 effective date allows some of the contracts between the Municipality of Haarlem and operators of advertisements to continue until they expire. There are five such contracts, with four of them to expire in 2024 and 2025, and the fifth in 2031. To implement the motion, the Municipal executive of Haarlem expressed its intent to prohibit the advertisement of products from factory farming that contribute excessively to carbon dioxide emissions and to submit complaints in the event of contract renewals with the operator of advertisements. The implementation will be limited to advertisement operators with contracts with the municipality. Others will be unaffected. In August 2022, the original motion was cited in the Haarlem City Council Minutes, where the council, for the first time, started notifying advertising agencies to give the motion effect, which attracted global attention.
C. Will the Meat Advertisement Ban Work?
The ban is enforced through private law agreements between Haarlem’s Municipal executive and advertisement operators. It is unclear how the ban will effectively be implemented. According to Klazes, questions such as how one separates intensive factory-farmed meat, which contributes to climate change, from organic meat and how we check the source of goods at a butcher’s shop will come up. It will be left to Haarlem’s executive to decide how to implement the motion. But, given the nexus between climate change and factory-farmed meat, even with strong opposition from the meat lobby, the motion should be enforceable and have a positive effect on climate change.
V. Indian Supreme Court Clarifies Animals Are Not Legal Persons
In a recent decision evaluating the constitutionality of certain state anti-cruelty laws, the Supreme Court of India refused to declare animals as constitutional rights-holders or legal persons, leaving the question to be decided by the legislature. The decision also allowed the resumption of cultural animal sports, such as Jallikattu and bull-cart racing, by refusing to strike down state legislation that envisioned the practices would continue with stricter regulation. The sports had previously been held unlawful and in violation of the Indian Prevention of Cruelty to Animals Act 1960 (the 1960 Act) by a Division Bench of the Supreme Court of India in Animal Welfare Board of India v. Nagaraja.
The Nagaraja decision laid the groundwork for animal protection jurisprudence in India. The case involved various challenges to the cultural and traditional practices of bull-cart racing and Jallikattu (a sport whereby people attach themselves to bulls’ horns in an attempt to tame them) in the Indian States of Tamil Nadu and Maharashtra. The decision acknowledged that animals (specifically bulls) are sentient, and the 1960 Act is a law enacted for their welfare. The judgment evaluated how, when forced to engage in the practice of Jallikattu, bulls experience immense suffering, consisting of mental as well as physical harm.
In Nagaraja, the Indian Supreme Court noted that the 1960 Act places certain duties on human beings and confers rights on animals. It observed that the festival/practice of Jallikattu does not safeguard the well-being of the animals but instead deprives bulls of their rights under the 1960 Act, ignoring their intrinsic worth. When discussing whether bulls are inherently performing animals, the Supreme Court noted that the bodies of bulls, their gait, and their historic usage (as draught animals) disfavor the idea that bulls are performing animals. The court noted that bulls are not anatomically designed to run fast and cannot be used for racing. Hence, according to the court, using the animals in this manner caused them immense suffering.
Accordingly, the court held that Jallikattu, bull-cart racing, and such events violated the 1960 Act and declared that bulls could not be used as performing animals either for Jallikattu events or bull-cart races in the States of Tamil Nadu, Maharashtra, or anywhere else in the country. The court declared that the legal rights guaranteed to bulls under the 1960 Act could not be taken away or restricted except as the law itself allows. The court did not hold that animals are legal persons, but declared that it expects the Indian Parliament to elevate the rights of animals to the status of constitutional rights-holders to protect their honor and dignity.
The Nagaraja judgment proved to be the building block for other Indian cases, which relied on the decision to delve into questions of animal legal personhood. For example, the Uttarakhand High Court in the case of Narayan Dutt Bhatt v. Union of India went as far as to declare the entire animal kingdom, including avian and aquatic species, as being legal entities with a distinct persona, having corresponding duties, rights, and liabilities of a living person. Similarly, the Punjab-Haryana High Court in Karnail Singh v. State of Haryana also declared the entire animal kingdom to be legal entities, and declared all citizens throughout the State of Haryana to be persons in loco parentis as the human face for the welfare or protection of animals. Both cases relied on Nagaraja to arrive at their conclusions, taking statutory animal rights one step further into animal personhood.
But, in 2017, a few years after the issuance of the Nagaraja decision, the States of Tamil Nadu, Maharashtra, and Karnataka passed laws amending the state anti-cruelty laws and allowing for practices such as Jallikattu and bull-cart racing to continue. The new laws legitimized the practices while regulating how they are carried out, inserting provisions to account for aspects of animal welfare (for example, stipulating the length of the race, time for rest periods, prohibition on physically abusing animals, etc.). The laws were challenged before the Supreme Court of India on the grounds that the state legislatures, by enacting these laws, were seeking to circumvent the court’s decision in Nagaraja.
In May 2023, in its decision in Animal Welfare Board of India v. Union of India, the Supreme Court of India adopted a much more restrained position than it originally had in Nagaraja. The court reaffirmed the reasoning in Nagaraja regarding the legal rights of animals, i.e., when the legislature imposes restrictions on human beings’ use of animals, such restrictions translate to a recognition of animal rights. But, when deciding whether animals have constitutional rights, the Indian Supreme Court refused to hold that animals possess constitutionally guaranteed fundamental rights, citing that there is no jurisprudential precedent in India for this proposition. Furthermore, the court also denied that animals are considered legal persons under India’s constitutional scheme, capable of bringing suits or petitions by themselves. Instead, the judges held that animal-related legislation can only be challenged by human beings or other legal persons who may “espouse the cause of animal welfare.” The court reiterated that the Nagaraja bench had merely suggested to the legislature that the statutory rights of animals be elevated to the status of constitutional rights but that ultimately, this is a decision solely for the legislature and not the judiciary.
On the question of whether the new state laws genuinely protect animals or merely circumvent the court’s holding in Nagaraja, the Supreme Court of India held that the amendment laws were valid, on the grounds that the new laws attempted to regulate the manner in which the sports are carried out and cater more to the welfare of the animals than was previously the case. On the one hand, the court acknowledged that despite the amendment in the laws, there could not be any guarantees that the bulls involved would experience no pain and suffering when used during these events. But, the judges were quick to point out that even the 1960 Act, which is the main anti-cruelty legislation in India, operates under the assumption that human beings will use animals for certain human ends, while trying to minimize pain and suffering. Hence, according to the court, the 1960 Act was not intended to prohibit the infliction of pain and suffering, but merely to regulate the degree of suffering caused to an animal. Furthermore, the court categorically refused to decide whether a particular form of animal use itself is “necessary” under the law, stating that the legislature should undertake this exercise.
Additionally, while the Nagaraja court had decisively stated that Jallikattu and bull-cart racing were not part of the State of Tamil Nadu’s culture and tradition, the Union of India bench adopted a more reserved approach towards the question. The court held that whether a certain practice was part of the State’s cultural heritage is again, a question for the legislature and not the judiciary. The court expressly overturned its decision in Nagaraja, where it held that Jallikattu was not a part of the heritage of the people of Tamil Nadu.
In conclusion, while the Union of India decision continued to reaffirm the sentience of animals and that they have certain statutory rights, it also stripped bulls of many of the protections afforded under Nagaraja, essentially allowing the practices that had been challenged under the original decision to continue. Furthermore, the court’s express denial of animal legal personhood or constitutional rights under the Indian legal framework may have a chilling effect on future High Court decisions involving animal rights. But, since the decision expressly states that the question of animal legal personhood is for the legislature to decide, it may incentivize State and Central legislatures in India to grapple with whether animals should be considered legal persons in the country.
VI. Brazilian Supreme Court: Municipalities Can Ban Noisy Fireworks to Protect Animals and People with Auditory Sensitivities
In May 2023, the Brazilian Supreme Court held that municipalities have authority to prohibit noisy fireworks and other pyrotechnic devices, a decision that was celebrated by advocates for animals and the autistic community. In 2017, the Municipality of Itapetininga, in São Paulo State, had passed a law banning the use of noisy fireworks in the urban area. While the text of the law did not mention the effect of fireworks on animals and people, the corresponding bill by which it was introduced had recognized the impacts on both groups. As to animals, the bill explained that the noise of fireworks causes them unnecessary suffering, may affect migration, mating, and birds’ ability to care for their young in protected areas, and is even sometimes connected to criminal animal mistreatment. As to people, the bill noted that the incorrect handling of noisy fireworks is dangerous and can cause serious problems for children, the elderly, and people with psychological issues.
The Attorney General of the State of São Paulo filed suit challenging the law, arguing that the municipality had exceeded its authority by legislating on production and consumption of goods, matters of federal and state legislative competence under the Brazilian Federal Constitution. The Attorney General also argued that there are less burdensome ways of avoiding damage to the community and the environment than a ban on fireworks, and that the ban was an unreasonable restraint on trade.
The Court of Justice of the State of São Paulo (the trial court) upheld the law, finding that the municipality could restrict fireworks based on the local interests at stake, including the number of families with companion animals as well as the significant populations of the elderly and children. The court relied in part on two resolutions from the National Environmental Council that treated noise pollution as a form of environmental pollution and established noise limits. The court observed that the ban was not an unreasonable restraint on trade, including because it was tailored only to reach fireworks that produce noise in the urban area of the municipality. The court also found that it was clear that the municipality was aiming to protect the local environment and health of its population, matters on which it was best placed to weigh the interests at stake.
The Attorney General filed an extraordinary appeal with the Supreme Court of Brazil, arguing that the municipality had no local interest and that it could not legislate on environmental matters in a manner that is contrary to or disharmonious with state and federal legislation. Moreover, the Attorney General argued that the municipality could have imposed limits on the use of fireworks (time limits, for example) but that the ban, as imposed, was not reasonable.
There was significant interest in the Supreme Court case, including the filing of five amicus briefs. Amici included the Brazilian Pyrotechnics Association, representing the interests of fireworks manufacturers and suppliers, and the Institute for the Promotion and Protection of Human Rights, representing the interests of people with autism spectrum disorder. In its amicus brief, the Municipality of São Paulo—which had had its own similar fireworks ban upheld by the Supreme Court in 2021—discussed animal welfare, including presenting scientific evidence on the damage caused by noisy fireworks to these sensitive beings.
The decision of the Brazilian Supreme Court discussed the irreversible damage that fireworks can cause to animals:
Regarding environmental protection, several scientific studies demonstrate that noise from fireworks causes harm to various animal species. Research from New Zealand indicates that fireworks cause anxiety and harm in horses. An article published in Forbes Magazine reports flocks of birds panicking during the release of fireworks, leading to the death of thousands of birds. Media reports on the suffering caused by fireworks in pets are common.
Thus, the Justices understood and relied on the scientific basis for restricting fireworks as a measure to protect animals and, by extension, the environment. The Court found that the municipal ban complied with “the principle of prevention,” an important tenet of Brazilian environmental law. Under that principle, priority must be given to measures that avoid damage to the environment, since the effective repair of environmental damage is often impossible. The Supreme Court also emphasized the negative impacts that noisy fireworks have on the health of people with autism spectrum disorders and auditory hypersensitivity.
The decision became final and unappealable in late September 2023. Thus, the Supreme Court has reaffirmed that Brazilian municipalities are competent to legislate concurrently on the environment, as long as they act within the limits of their local interest and as long as the measures are compatible with state and federal legislation.
