Kentucky is one of the latest states to take aim at undercover investigations of factory farms. Passed after a legislative override of Governor Beshear’s veto on April 12, Senate Bill 16 prevents unauthorized filming, pictures or audio recording of food processing plants and meat and dairy operations. The law targets small and large producers – including Tyson Foods, whose lobbyist helped draft the bill. But SB16 is also unique from past ag-gag legislation, as the bill’s proponents sought to ban use of drones for investigations.
Historically, ag-gag laws are bills that make it illegal to film inside factory farms and slaughterhouses without the owner’s permission. The new Kentucky measure fits that description, but also includes the anti-drone component, and a prohibition on recording any “part, procedure, or action” of a factory farm or food processing plant. Critics of the law say its broad language makes it vulnerable to a First Amendment challenge in court, which was the fate for ag gag laws passed in Kansas and Idaho.
Drones under the law
Commercial drone pilots are subject to the Federal Aviation Administration's oversight. This includes regulations that set federal no-fly zones, limits on how high they can fly, identification standards and permitting requirements. Earlier this year, the federal agency took steps to beef up drone governance by implementing a rule referred to as Remote ID, which requires that drones be remotely identifiable using long range monitors. There are only a handful of areas in which the ID is not necessary - most run by drone schools.
However, there are rules and then there is reality. "Drone laws are really hard to enforce," Kentucky-based commercial drone pilot Andrew Peckat, tells Sentient. That's especially true in rural areas where many industrial meat and dairy operations are located. "I imagine these facilities are in the middle of nowhere, and there's not going to be any flight restriction zones around them." Peckat sees regulations of drones as largely unenforceable. "I'm not going to have to apply for any permits," Peckat says, adding, "There's probably...going to be no way to figure out" who's taking the drone footage.
Critics call out unintended consequences
Opponents of the legislation argue that the language of Kentucky's SB16 is overly vague, which suggests that it could end up doing even more to shield the meat and dairy industry from the public eye. "I do think this is just so much broader than a typical Ag Gag bill," says Ashley Wilmes, who leads Kentucky Resources Council, a nonprofit aimed at conserving the state's natural resources.
According to Wilmes, the legislation leaves many unanswered questions, and that lack of clarity could discourage potential whistleblowers from coming forward. Wilmes isn't just concerned about undercover investigations either. If allowed to stand, the law could have implications for some of Kentucky Resources Council's current legal aid clients who want to monitor pollution. "We have clients that care considerably about water quality," she explains, some of whom live next to food processing facilities or factory farms, and have reached out to Wilmes for guidance about what they can and can't do under the new rule. "What if they see something, and they're documenting it from their own property?" she asks. The law is written so broadly, she says, that it's possible to conclude "that's now a crime," Wilmes says.
Tyson behind the push for the legislation
Kentucky's ag gag legislation was sponsored by Senators John Schickel (R), Rick Girdler (R), Brandon Storm (R) and Robin Webb (D). During testimony before the agriculture committee, Senator Schickel revealed the bill was originally drafted by Steve Butts, who appeared to then hold the title of Senior Manager of Security at Tyson. Throughout the bill's progress through the legislature, lobbyist Ronald J. Pryor - who counts Tyson Foods and the Kentucky Poultry Federation among his clients - worked to get the law passed.
In a hearing before the state senate's agriculture committee, Graham Hall, a government affairs manager with Tyson Foods, testified that drones pose a threat to agricultural operations, citing incidents in North Carolina where a drone landed on a truck containing livestock. But there were no such incidents in Kentucky presented as evidence, though the multinational corporation did open a $355 million pork processing facilityin the state in January.
Kentucky's Governor Beshear vetoed the measure, writing that "the bill diminishes transparency" in a statement accompanying his decision. With an overwhelming majority in both chambers however, state lawmakers overrode the governor's veto. Now the bill is poised to become law in mid-July of this year - 90 days after the conclusion of the legislative session.
One potential hitch could be a legal challenge however, as Kentucky Resource Council is in talks with other organizations to consider filing a lawsuit to strike down SB-16 for violating the First Amendment.
If successful, the lawsuit would force Kentucky's ag gag law to follow in the footsteps of so many ag gag laws passed before it in other states. One of the most recent decisions, in North Carolina, struck down a similar law, as lawmakers there sought to ban undercover investigations, but ultimately failed.
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Written by Grace Hussain for Sentient. Made available by the Kentucky News Service
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