‘They’re lying to the public’

via Harvard Law Today
by Rachel Reed

Brett Richey ’21 was deep into a case for the Harvard Law School Animal Law & Policy Clinic when she ran across a string of emails that made her stop cold.

While digging through more than 1,000 pages attained through a Freedom of Information Act request to the U.S. Department of Agriculture (USDA), she found, hidden among the minutia of records, filings, and other documents, communications between employees and internal PowerPoint presentations outlining a policy on examining animal research facilities she thought directly contravened the Animal Welfare Act. And not only that — she felt it was in direct opposition to one of the agency’s publicly stated policies.

Richey says her discovery showed that “the agency has made every effort, including concealing its inspection policy from the public and misrepresenting it to a federal judge, to avoid its legal obligation to ensure that primates used in scientific research are treated humanely.”

The Animal Law & Policy Clinic got its start in 2019, just as Richey was beginning her second year of law school. “I had taken an animal law class and it really inspired me to get involved,” she says. “When HLS announced that it was starting the clinic, I thought it would be an exciting opportunity to do something important.”

Richey, along with Kate Barnekow ’19, a clinical fellow, were working under Katherine Meyer, director of the Animal Law & Policy Clinic and visiting assistant clinical professor of law, when they uncovered the documents.

The clinic’s discovery is a case study in the long, complex process of holding government agencies accountable, and, as such, it is replete with different laws, regulations, a public petition, promises made and broken, a lawsuit and, finally, the disclosure of key facts thanks to a Freedom of Information Act request.

It stemmed from one of the clinic’s ongoing cases aimed at improving conditions for primates used in research. Richey says primates — a broad classification of mammals that includes humans — have unique social and psychological requirements, and without additional protections, tend to suffer in captivity. Her clients’ overarching goal, she adds, is to require facilities that keep primates to house species together, offer enrichment activities and things to climb on, and add other improvements that promote their welfare.

In response to a 1985 congressional update to the Animal Welfare Act, the USDA, which oversees animals in biomedical research facilities, told labs across the U.S. to institute “enrichment plans” to support the animals’ additional needs. In 2014, the clinic’s clients Rise for Animals (formerly the New England Anti-Vivisection Society) and the Animal Legal Defense Fund petitioned the agency to further improve the standard of psychological welfare for all primates held in research facilities, but the USDA never responded. Four years later, however, the USDA announced that it was considering relying on third-party inspections or certifications to determine research facilities’ compliance with the Animal Welfare Act, sparking outrage among advocates. The agency then backtracked, saying it would not go forward with the proposed change.

Fast forward to 2019. Disturbed that the USDA still hadn’t responded to the 2014 petition, Richey, Barnekow, and Meyer filed an “unreasonable delay” case against the agency, hoping to prompt an answer either way. An attorney for the USDA quickly denied the petition, claiming that its inspectors were already “examin[ing] and document[ing] all areas of care and treatment that are covered under the Animal Welfare Act.”

Richey says the agency’s response felt hollow. Meanwhile, the Animal Law & Policy Clinic had caught wind of a rumor that facilities accredited by an industry-led organization called the Association for Assessment and Accreditation of Laboratory Animal Care (AAALAC International) were routinely being exempted from the USDA’s annual inspections.

So, in June of 2020, the clinic again took action, filing a FOIA request to see if they could validate these rumors, then sued to enforce the FOIA when the agency failed to respond to the request. The clinic also sued the USDA to directly challenge its denial of the 2014 petition. On March 2, 2021, the Animal Law & Policy Clinic finally received a batch of documents from their FOIA request. And that’s when Richey unearthed something shocking.

Under the Animal Welfare Act, Richey says, the USDA is required to examine three things every year at animal research facilities: the animals themselves, their physical environment, and documentation showing their plan for care.

“The documents outlined that the USDA had a policy where they would not do full inspections of facilities if they were accredited by AAALAC, which is an outside private industry accrediting body for labs,” says Richey. “As we discovered, the USDA was saying to its inspectors that they only had to look at one of the three elements and that would satisfy the standard.”

This meant that if a lab was credited by AAALAC, an inspector could simply look at its paperwork and deem it compliant without ever seeing if their plans — including enrichment programming for primates — were in fact being implemented at the facility, she adds.

This is problematic, say Richey and Barnekow, because AAALAC is a private industry group. “We don’t know their standards for accreditation,” says Barnekow. “We know from sources that AALAC’s visits are announced, which gives the facility time to prepare. And they’re not strict. Their visits aren’t something that could or should take the place of annual inspections by the USDA.”

Even if USDA inspectors wanted to conduct a more thorough assessment of a facility, Richey says the documents she uncovered showed that they were discouraged from doing so. “I found emails from individual inspectors saying ‘what if it’s a small facility, can I do the full inspection?’ And the agency explicitly told them to only do a limited inspection.”

Barnekow adds that the policy directly contradicts what the agency said it would do in 2018, when it reassured the public that it would not adopt the new inspections standard. “They are lying to the public about the way they’re implementing this policy,” she says.

Not only does that diminish trust in the institution, it also means that animals in research facilities — particularly primates — could be living in conditions that do not meet the standards of the Animal Welfare Act, she and Richey argue.

“AAALAC-accredited facilities actually have higher rates of noncompliance than non-accredited facilities,” says Barnekow, citing a 2014 study. “If inspections are done properly, the USDA has to follow up if they catch something. But with the policy as it exists now, there is little way to catch an issue in the first place. This leads us to surmise that noncompliant facilities are not going to be caught, which will directly endanger animals.”

Richey adds that this could have a ripple effect of reducing standards at other facilities, because they now “know that industry certification leads to less intensive inspections, ones that don’t have to actually look at the animals.”

Armed with this important piece of information, and alarmed at what they say is deception on the part of the USDA, the clinic is continuing to challenge the agency’s rejection of the original petition aimed at improving welfare standards for primates.

“We are hopeful that this discovery will show the judge that the reasons the agency relied on are flat out not true and insufficient,” says Barnekow. “The best case scenario is that we win or the agency revisits and decides to implement new standards.”

“There has been a lot of interest in this new policy and how it circumvents the law,” adds Richey. “Hopefully, we can get this change and ensure that the Animal Welfare Act is properly enforced and animals are given sufficient care and protection.”

As Richey prepares to graduate, she says her experience at the clinic was not only invaluable to her education, but gave her an opportunity to work on important cases with a real impact on animals.

“I had a lot of responsibility: I wrote briefs, a lot of them. And I had a lot of help, but I got to take a front-facing role in projects that I normally wouldn’t have. It informed what I want to do after law school, because I realized not only is litigation exciting but that I can do it. I am hoping that in my career I’ll continue to be able to take the lead on projects that make a difference,” says Richey.

As for the Animal Law & Policy Clinic’s continuing work to improve the welfare of primates and other animals in research facilities, Richey says she is optimistic: “I can’t wait to see what happens with this case down the road. I hope I’ll be reading about it in the news.”