PHOENIX — Attorneys for the state want a judge to delay deciding whether a rule by the Arizona Agriculture Department requiring eggs from cage-free hens is legal, saying things are about to change.
But it is less than clear that anything the judge decides about pausing the case will make a nickel’s worth of difference in the price Arizonans are paying for eggs — especially now that the state’s largest egg producer had to euthanize millions of hens due to bird flu, which will impair supply.
The rule, which a Tucson restaurant owner has taken to court to try to overturn, isn’t currently being enforced.
The case concerns whether the Agriculture Department had the authority to enact the rule in 2022 to forbid major egg producers in the state from keeping their hens penned up in 62-square-inch cages.
In a 2023 lawsuit, Tucson restaurateur Grant Kruger says the agency exceeded its authority. He said his status as a purchaser of eggs for his three restaurants gives him status to sue; he figures the additional cost of cage-free eggs could cost him up to $3,380 a year.
Attorneys for the state disagree. And the judge, Scott Blaney of Maricopa County Superior Court, has yet to rule.
But now the Agriculture Department wants Blaney to delay his decision.
In new filings, its lawyers point out that the department is not enforcing the rule, due to concerns that implementing it would exacerbate already high egg prices.
On top of that, Gov. Katie Hobbs directed the department in March to rewrite the rule — this time putting off enforcement until 2032. That also would clarify other parts of the existing rule.
That revised rule is expected to be voted on by the department in August, and enacted in October. So any decision Blaney’s makes now on the eligibility of the current rule could be irrelevant by the time the new rule is enacted, the state’s attorneys told the judge.
“Further, depending on the substance of any modified rule, it is conceivable that plaintiffs might sue again, taking the parties and court back to square one based on new text, new arguments and a new record,’’ they wrote. “That is not an efficient use of scarce public resources. It would be far more efficient to wait for the rulemaking to finish and then assess how to proceed at that point.’’
There was no immediate response from the Goldwater Institute, which filed the lawsuit on Kruger’s behalf, to the request.
Meanwhile, an avian flu outbreak has killed or forced the euthanasia of 95% of Hickman’s Family Farms’ Arizona hen population, the company’s CEO said on May 30, which will affect egg supplies in the state.
