This Article analyzes the recent proliferation of “tag-gag” laws aimed at undermining the emerging plantbased and cell-based food industries. It examines potential constitutional challenges to these laws, including those based on the First Amendment, the dormant Commerce Clause, Supremacy Clause, and Due Process Clause, as well as the likely arguments that states will proffer in their defense. It concludes with a discussion of the consequences and implications of various outcomes of these cases, and how animal advocates can responsibly bring these types of constitutional challenges. The Article was adapted from Chapter 11 of What Can Animal Law Learn From Environmental Law, 2d Edition (ELI Press, forthcoming 2020).

We are practitioners for the City of Philadelphia with extensive experience in cases and analysis regarding the extent to which the Commonwealth of Pennsylvania has, or has not, preempted local regulation in various subjects of concern to the City. As City attorneys, our perspective is based in our role as advocates for the preservation and defense of the City’s exercise of its home rule powers. In considering the city-state relationship, many of the practical, political and cultural issues addressed in Prof. Richard C. Schragger’s article, The Attack on American Cities, resonate with us. In a number of instances, the city has seemingly been under “attack” from outside forces that appear mistrustful and hostile to the city’s exercise of its regulatory authority. Because we are the quintessential “big city” in a state with an otherwise very large suburban and rural population, the commonly cited historical tension between urban life and non-urban interests has played out in ways that we recognize in Schragger’s description of the national experience. We are not wholly convinced, however, that state law preemption that impacts the city’s powers is the outcome of a particular hostility to urban interests in general as much as it is the outcome of the ability of “special interests,” often corporate but also often “interest-group” or culturally based, to exert outsized influence on the state legislature. 

On March 11, 2019, the National Oceanic and Atmospheric Administration published an advance notice of proposed rulemaking to amend regulations that implement the Coastal Zone Management Act’s (CZMA’s) consistency requirement. This Article places the notice in context, focusing on the CZMA’s role in state review of offshore oil and gas development and its evolution to provide a predictable framework that balances coastal state interests with the nation’s energy needs. It argues that current circumstances and facts do not support amending the regulations and that such changes should have an uphill battle in court.