As the second hog nuisance trial against Murphy-Brown enters another week of testimony in federal court, a few blocks away, Republican lawmakers, working at the behest of the state’s hog industry, are trying to stop these cases against the world’s largest pork producer from ever happening again.
The NC Farm Act of 2018, Senate Bill 711, was a benign measure until yesterday. That’s when Republican lawmakers sprung a substitute bill on the Agriculture and Natural Resources Committee that contained a provision regarding what constitutes a nuisance – one that muzzles potential plaintiffs even more tightly than a law that was passed last year. (The bill is on a fast track. It was approved in the committee yesterday and is scheduled for consideration this afternoon in the Senate Judiciary Committee at 2:00 p.m. and, if approved there, could be heard in the Senate Rules Committee as early as 3:00 p.m.)
During the committee meeting, Sen. Brent Jackson, an agribusinessman who represents three counties in the heart of hog country, acknowledged that the new language was included in direct response to the ongoing nuisance lawsuits in federal court. The proposed changes also mirror laws in other pork-producing states, such as Iowa, where nuisance suits are sharply preempted.
First, the new version of SB 711 excludes several conditions on which plaintiffs can now sue for nuisance. For example, if a farm is permitted for 4,000 hogs, but then receives state permission to expand to 8,000 hogs, neighbors could not sue for nuisance. (Legally, expanded and new hog farms are required to install new waste management technology, but a nuisance could still exist.)
“This is especially harmful,” said Jamie Cole of the North Carolina Conservation Network. She is also a member of the state’s Environmental Justice and Equity Advisory Board. “If you’re the neighbors, you just have to take it.”
Farms that comply with state regulations would also be exempt from nuisance suits. However, outside of courtrooms and legislative committee rooms, reality is not that simple. In the two cases that have come before a federal jury, for instance, the farms in question are following state environmental law in their waste management systems. The problem is that state environmental laws are weak, and in some cases, not being fully implemented. A farm can “comply” but still create a nuisance.
Also exempted from nuisance is a “change in agricultural or forestry product produced.” A poultry farm, which uses dry litter waste methods, for instance, could transform into a hog farm, which manages feces and urine by washing the material from the barns into enormous lagoons. That waste is then sprayed on agricultural fields, but the particles and odor often drift into neighboring communities. But those neighbors could not sue for nuisance.
This bill would also usurp local control. County governments would also be forbidden from enforcing existing ordinances, or from passing future ones, that would force farms to change their operations in response to nuisance complaints.
In fact, the bill penalizes plaintiffs who sue but lose – a significant deterrent to bringing these lawsuits. If a judge or jury finds a hog farm operation is not a nuisance, and that the lawsuit itself is “frivolous or malicious,” then the plaintiffs have to pay the attorney fees for the defense.
In such cases, Murphy-Brown, which is owned by the Chinese company WH Group, would be able to recoup the fees. The neighbors suing for nuisance are often low-income and, without the ability to pay Murphy-Brown’s attorneys, could decide not to chance losing in court.
Environmental advocates scrambled to make sense of the new SB 711. Once they dissected it, the groups roundly criticized the bill.
“It’s a fundamental duty of government to provide for the safety and wellbeing of citizens,” said Cassie Gavin, director of government relations for the Sierra Club. “The NC Senate has failed to do this for neighbors of big hog farms and has systematically rolled back water quality protections across the state. Now, the Senate appears ready to double down on making it even tougher for these citizens, many whom have lost the ability to use and enjoy their property, to seek redress in court.”
Last year’s controversial law stymies plaintiffs’ abilities to recoup full compensatory damages – awarded by a jury – against industrialized hog farms for quality-of-life issues, such as odor, flies, buzzards, dust and truck traffic.
Early versions of that bill even made the law retroactive. That would have killed all of the pending nuisance suits that had been filed in 2014 and 2015 – and which are only coming to trial this year. Lawmakers negotiated and eventually struck that language.
The most recent Farm Act though, is only part of a full-court press by the NC Pork Council, Murphy-Brown and other major hog producers, to subvert the existing legal process. Within the last week, the Pork Council, the industry front group NC Farm Families, and state Agriculture Commissioner Steve Troxler have all deployed a public relations strategy that relies on the scare tactic claim that if Murphy-Brown continues to lose these nuisance suits, the state’s hog industry will collapse and leave thousands of farmers and their employees out of work.
It’s not unusual for the hog industry to defend itself publicly. However, there could be another reason for the onslaught of apocalyptic predictions. On May 30, Judge Earl Britt held a hearing prior to the start of the the nuisance trial involving hog farmer Joey Carter. According to court records, Britt prohibited the attorneys from arguing in open court that “lawsuits or damage awards could result in family farmers declaring bankruptcy” or “ that this lawsuit is part of an effort by environmentalists liberals and left-wingers to hurt North Carolina farmers and put them out of business.”
Britt wrote in his ruling that the business consequences resulting from this lawsuit or any damage award that affect non-parties are “not relevant to this action.” In other words, Murphy-Brown is on trial, not Joey Carter.
Within the week, Troxler had issued a press release saying, “I consider the production of food and fiber to be admirable and certainly not a nuisance. … When we take our farmers and food production for granted, we stand to literally lose the hand that feeds us.”
And on the day after Britt’s ruling, NC Pork Council CEO Andy Curliss painted a similarly dire picture: “Eastern North Carolina is under attack,” Curliss wrote on the trade group’s blog. If the current lawsuit is successful, Curliss went on, it “will most certainly put the farmer out of business.”
That’s unlikely. First, Murphy-Brown is on trial, not the farmer, Joey Carter, so the company would be responsible for paying damages. Ten plaintiffs in the first trial were awarded a total of $3.2 million, a minuscule amount for a global company whose CEO earns $297 million per year, including stock options.
Murphy-Brown could also decide to manage its waste differently to reduce odors and the impacts on neighbors. The company did just that in Missouri, as required by federal and state consent orders. A story in Successful Farming describes how Smithfield, a subsidiary of Murphy-Brown, improved the farm in part by installing covers on the lagoons and advanced technologies.
The title of the story? “How Smithfield saved the worst hog farm in America”.