You Don't Need Lungs to Suffer: Fish Suffering in the Age of Climate Change with a Call for Regulatory Reform
| Author | David Cassuto & Amy O'Brien |
| Position | Professor of Law & Director, Brazil-American Institute for Law & Environment (BAILE)/Juris Doctor and Environmental Law Certificate at Elisabeth Haub School of Law at Pace University, Class of 2019 |
| Pages | 31-75 |
You Don’t Need Lungs to Suer:
Fish Suering in the Age of Climate
Change with a Call for Regulatory
Reform
David N Cassuto* & Amy M O’Brien**
Fish are sentient — they feel pain and suer. Yet, while we see increasing interest in
protecting birds and mammals in industries such as farming and research (albeit few
laws), no such attention has been paid to the suering of sh in the shing industry.
Consideration of sh welfare including reducing needless suering should be a component
of sheries management. is article focuses on sheries management practices, the
eects of anthropogenic climate change on sheries management practices, and the moral
implications of sh sentience on the development and amendment of global shing
practices. Part I examines domestic and international sheries, including slaughter
practices for wild-caught and farmed sh. Part II discusses the impact of climate change
on global sheries management. Part III outlines recent scientic discoveries that
reveal that sh have sentient capabilities. Part IV analyzes psychological and economic
roadblocks to acknowledging sh harm. Part V discusses strategies to incorporate
concerns over sh harm into current practices. Part VI discusses the United States’ Public
Trust Doctrine, arguing that: (1) it exists at both the state and federal levels; and (2)
it requires stricter sheries management practices that impose humane requirements
on commercial sheries. Part VII concludes that (1) anthropogenic climate change is
inicting an enormous amount of suering on sh populations, and (2) sheries
management practices must mitigate these harms by incorporating moral considerations.
* David N Cassuto (BA, Wesleyan University; JD, University of California
Berkeley, Boalt Hall School of Law; PhD, Indiana University) is Professor
of Law & Director, Brazil-American Institute for Law & Environment
(BAILE), Pace University, Elisabeth Haub School of Law and the Class of
1946 Distinguished Visiting Professor of Environmental Studies, Williams
College.
** Amy M O’Brien (Juris Doctor and Environmental Law Certificate at
Elisabeth Haub School of Law at Pace University, Class of 2019) is
Research Assistant to Professor Cassuto. I would like to thank Professor
Cassuto for his guidance and support, and for the opportunity to
participate in writing this article.
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Cassuto & O’Brien, You Don’t Need Lungs to Suffer
I. I
II. R D I F
A. International Fisheries
B. Domestic Fisheries
1. Domestic Fisheries Management
i. Current Statutory Framework
ii. Failure of Current Methods
III. W F S M: S E F S
A. Fish Feel Pain
B. Fish Have Emotions
C. Moral Considerations
IV. C F P
A. Domestic Fishing Practices
1. Farmed Fish
2. Wild-Caught Fish
V. E C C O A
A. Ocean Acidification
B. Change in Weather Patterns
VI. C B F H C I
A. Anthropocentric Motivation
B. Charismatic Megafauna
C. Attention to Stock Numbers
VII. S O M I
A. Recognizing Moral Inadequacies
B. Recommended Regulatory Reforms
1. Limit Stun-to-Kill Time
2. Gillnets
3. Increased Enforcement
4. Recommended Reform
VIII. I P T D
A. e PTD Applies to Fisheries
B. ere is a Federal Public Trust and It Applies to Fish
1. Federal Powers Were Ceded to the Federal Government by
the States
2. e Federal Trust Obligation Is Recognized in Jurisprudence
3. e Juliana Case
4. e Federal PTD Applies to Fish
33
(2019) 5 CJCCL
C. e PTD Internationally
IX. C
I. Introduction
Fish are a vital commodity in global markets and a food source for
billions of people. But they also have intrinsic value unrelated to the
human food supply that is not contemplated in fisheries management
systems. Furthermore, fish are sentient — they feel pain and suffer like
birds and mammals. Yet, while there are some laws and increasing interest
in protecting birds and mammals in industries such as farming and
research,1 no such attention has been paid to the suffering experienced by
fish in the fishing industry.
If we accept the principle that inflicting needless suffering is wrongful
(as we do with humans and other mammals), there arises a moral
obligation not to do so. Absent a morally relevant difference between
aquatic and land animals, that same moral obligation afforded to land
animals should apply equally to fish and other aquatic animals. It hardly
bears stating that human activity, particularly fishing, has a substantial
impact on the lives of aquatic animals. Consequently, consideration of
fish welfare — including reducing needless suffering — should be a
standard component of fisheries management.
is article focuses on current domestic and international fisheries
management practices, the effects of anthropogenic climate change
1. See e.g. Animal Welfare Act, 7 USC § 2131 (1966) [AWA], (regulating
the treatment of animals in research and exhibition); Humane Slaughter
Act, 7 USC § 1901 (1958) [HSA], (regulating the treatment of livestock
during slaughter). is legislation, however, has been pitifully inadequate
to protect animals from harm and suffering. See Courtney G Lee,
“e Animal Welfare Act at Fifty: Problems and Possibilities in Animal
Testing Regulation” (2016) 95:1 Nebraska Law Review 194 (discussing
the inadequacies of the AWA in protecting laboratory animals); see also
Lauren S Rikleen, “e Animal Welfare Act: Still a Cruelty to Animals”
(1978) 7:1 Boston College Environmental Affairs Law Review 129
(discussing the United States Department of Agriculture failure to
effectively implement and enforce the AWA).
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