the impacts of human-caused climate change mean the continent’s most charismatic residents, the emperor penguins, were designated as a threatened species by the u.s. fish and wildlife service in october. the following day, new zealand prime minister jacinda ardern embarked on the five-hour journey south to visit antarctica and emphasize the importance of research and international cooperation amid the climate crisis. 

“antarctic research is urgently needed to understand past and future climates, how we are affecting antarctica, and how antarctica will affect us,” she said in a statement before her trip.

antarctica in crisis

endemic to antarctica, emperor penguins are not located within any country’s sovereign territory. however, their demise is a global problem, as is the preservation of the continent of antarctica. 

new zealand is a key collaborator for the u.s.’s antarctic endeavors. mcmurdo station, the largest u.s. research station on the ice, is located just three miles from new zealand’s scott base. operation deep freeze, u.s. military support missions, are flown out of christchurch, new zealand, during the summer season.

these close logistical relations were evidenced last month, when ardern flew from christchurch to mcmurdo sound on a u.s. air force plane.

the u.s. and new zealand are currently co-funding a study of antarctica’s largest emperor penguin colony. according to the new zealand’s national institute of water and atmospheric research, the ice-based team comprises one new zealander and three americans.

wild emperor penguins rely on sea ice to form breeding colonies, forage for food, and avoid predation. found only on antarctica, their survival is threatened by the extreme effects that human-caused climate change is having on the continent. 

researchers were alarmed in march this year, when temperatures on the antarctic plateau surged 70 degrees warmer than usual at that time of year. the continent’s ice mass is melting at an average rate of about 150 billion tons per year, according to nasa. 

research into the penguin colony is expected to shed light on the rate and extremity of climate change in the area, as well as the impacts on the birds themselves. the penguins’ feeding and habitat changes can be key indicators of the effects of climate change and state of the sea ice, new zealand’s institute said in a statement.

by designating them as “threatened” under the endangered species act, the u.s. fish and wildlife service has recognized that they are likely to become endangered in the near future. 

“this listing reflects the growing extinction crisis and highlights the importance of … efforts to conserve species before population declines become irreversible,” martha williams, director of the u.s. fish and wildlife service, said in a statement.

according to a 2021 report co-authored by experts from the u.s., new zealand and five other countries, the listing will make available a number of the act’s protective measures, even though emperor penguin colonies are not located in u.s. territory.

“esa listing would require all u.s. federal agencies to evaluate and ensure that their activities do not jeopardize the species or their habitat, which could include limiting greenhouse gas emissions for species endangered by climate change,” the report stated.

a remote place, a close connection 

international cooperation is key to understanding and protecting antarctic species as human actions continue to warm the planet. this is managed through the antarctic treaty system, which comprises 55 countries and promotes international cooperation. the u.s. and new zealand are just two of 29 countries with permanent research stations scattered across the continent.

last month’s visit makes ardern the third new zealand prime minister to visit antarctica in 15 years. ardern has a long-held fascination with the area. she is a self-professed super fan of 19th-century antarctic explorer, ernest shackleton, and has even considered getting a tattoo with his silhouette.

speaking from scott base, ardern echoed the strong connection between antarctica and the rest of the world. “it is easy to feel detached from this incredibly remote place where so few people ever have the privilege of coming,” she said. “but there is such a close connection, in so many different fields, between our daily lives and the research that is happening here.”

on oct. 11, the pork industry trade group argued that california’s incoming regulations would unfairly burden pork producers across the country by requiring them to meet california’s animal welfare standards, which would impose an undue limitation on interstate commerce. california, on the other hand, defended its regulation as a legitimate, in-state issue. because farm animals in the u.s. do not have a universal right to welfare, these arguments turn on whether a state’s individual morals can justify a restriction on interstate commerce, rather than the wellbeing of the pigs. 

proposition 12 was enacted in 2018 after 62% of californians voted in favor of banning the sale of pork from breeding pigs, or a breeding pig’s offspring, where the sow is confined to less than 24 square feet of usable floor space.

“california voters chose to pay higher prices to serve their local interest in refusing to provide a market to products they viewed as morally objectionable and potentially unsafe,” said michael mongan, california’s solicitor-general.

according to the trade group, this regulation constitutes a breach of the dormant commerce clause – a legal doctrine inferred from article i of the constitution. under the doctrine, states may only enact restrictions that discriminate against, or unduly burden, interstate commerce if that effect is incidental and proportional to a legitimate local interest. 

in other words, the purported benefit of the law must outweigh the burden placed on interstate commerce. as consumers of 13% of the nation’s pork market, california’s regulation will significantly impact pork producers across the country. according to the pork industry trade group, animal welfare concerns do not constitute a legitimate local interest to outweigh this.

“proposition 12 violates the commerce clause almost per se because it’s an extraterritorial regulation that conditions pork sales on out-of-state farmers adopting california’s preferred farming methods, for no valid safety reason,” argued timothy bishop, counsel for the trade group. “it burdens interstate commerce for no local benefit.”

his argument that the pigs’ welfare is not a legitimate public interest reflects the fact that animal welfare is not widely protected in the u.s. this sets the u.s. apart from a number of countries – the united kingdom and new zealand are just two examples of countries with national legislation that requires any person responsible for animals to ensure their protection.  

animal sentience is also becoming increasingly accepted around the world. at least 39 countries expressly recognize it in legislation. although often ill-defined, the sentience institute describes it as “the capacity to have positive and negative experiences, usually thought of as happiness and suffering.” france, which recognized animal sentience as early as 1975, paired this with a requirement that animals be kept in conditions that are appropriate to the “biological … requirements of their species.”

in accordance with increasing awareness, numerous countries are moving toward the prohibition of restrictive gestation crates for sows. new zealand, which expressly recognized animal sentience in 2015, is working to phase them out following a 2020 high court decision, which found that they are unlawful under the country’s animal welfare act. 

in the u.s., animal welfare laws are sparse and often state dependent. justice ketanji brown jackson pointed out that the distinction between humanely-raised and inhumanely raised pork is not universally held. “if it were, i would think the market would have already accounted for it everywhere,” she said.

oregon, maine, and illinois are among a number of states that have recognized animals as sentient beings – either explicitly or implicitly. but protections at a federal level are limited. the animal welfare act of 1966, a primary piece of animal protection legislation governing the treatment of animals in research, exhibition, and transport, expressly excludes farm animals from its definition of “animals.” 

nine states have banned the use of gestation crates for breeding pigs, but massachusetts is the only other state to ban the sale of pork raised using them. this law, which was set to take effect in august, has been temporarily blocked by the state’s district court pending the supreme court’s decision.

this lack of animal welfare protection was apparent last month. because there is no clear basis to assume that animal welfare is a legitimate interest across the nation, california’s disagreement with the treatment of pigs in other states is not sufficient to support proposition 12, argued edwin kneedler, counsel for the department of justice.

instead, the arguments focused on whether a state’s values may constitute a “legitimate local interest.” a number of justices seemed concerned about the consequences of finding that they could. they questioned the possibility of a floodgates effect, offering analogies where a state may prohibit the sale of goods produced in other states by workers who do not earn a fair minimum wage, or have access to union membership.

“a lot of policy disputes can be incorporated into laws like yours,” said justice elena kagan. “you could have states doing a wide variety of things through the mechanism of saying ‘unless you comply, you can’t sell goods in our market.’”

these concerns leave substantial uncertainty in this case. unusually, its appearance in the supreme court comes at a preliminary stage. the court must decide whether the pork industry has an arguable case under the dormant commerce clause. if so, they will send it back to lower courts for a fuller exploration, an outcome which seems likely, based on the number of questions from the bench.

this article was originally published on medill news service, a project of northwestern university.