If it seemed impossible that neighbors of industrialized hog farms had any legal rights left to lose, a new version of the N.C. Farm Act strips those residents of any ability to sue the giant polluters for nuisance.
After being amended six times Wednesday, the Farm Act, also known as Senate Bill 711, is on the verge of becoming law, even though several Republicans broke rank and opposed the measure. Among them was Rep. John Blust of Guilford County, who questioned whether the bill was vulnerable to a constitutional challenge.
Blust pointed out the carve-outs in the bill for the agriculture and forestry industries are not extended to other polluting entities, such as chemical plants.
Still, despite the opposition, the bill passed its second reading, 67-47. It is up for a final House vote today.
The bill already exempts hog farms that operate negligently from nuisance suits, as long as the state has not cited them for civil or criminal penalties in the past three years. It eliminates punitive damages for the rare winning plaintiff, and allows the hog industry to recoup attorneys’ fees if a jury deems a lawsuit frivolous.
Despite the giveaways to the industrialized hog industry, specifically Murphy-Brown – the world’s largest pork producer – the House continued to tweak the language Wednesday. These changes precluded any genuine opportunity for neighbors, already beset by stench, buzzards, flies, dust and truck traffic, to take their concerns to court.
Rep. Jimmy Dixon, a Duplin County Republican and turkey farmer, successfully introduced an amendment that would limit the property
owners who could file suit to those living within a half-mile of a sprayfield, waste lagoon or hog barn causing the nuisance.
“This may well mean a person who owns the bordering property couldn’t sue for nuisance because they aren’t within a half mile of the source,” noted Blust.
“You have to understand the nature of what you’re talking about,” said Dixon. “A half mile is a long, long, long way.”
In fact, scientific studies cited in peer-review journals and during a recent nuisance trial in federal court show that fecal matter from hog farms can drift to properties as far as three miles away.
“I don’t know where the half mile came from,” countered Blust, who introduced several amendments that would have added protections for neighbors. “It’s worse for the property owners.”
Dixon insisted that current lawsuits would be unaffected by the legislation, should it become law. However, the bill language is vague enough to allow Murphy-Brown lawyers to claim the 20-plus lawsuits that have been filed but not yet gone to court couldn’t proceed.
“The bill is clear to everyone but the lawyers,” Dixon said. “We’re trying to limit lawsuits.”
Blust tried to clarify the language by ensuring that the filing of nuisance lawsuits would comply with the legal statute of limitations – three years – from the “date of the injury, not the date of the lawsuits.” He also introduced an amendment that would have removed the negligence language.
In turn, Rep. John Bell IV, a Republican who represents four counties in the southeast part of the state, accused Blust of “trying to destroy the bill.”
Among the other Republican defectors on the measure were Reps. Michael Speciale, Hugh Blackwell and Ted Davis Jr. Davis was a primary sponsor of last year’s controversial legislation capping the amount of compensatory damages that winning plaintiffs could recover.
But the nuisance law provision in the 2018 bill was just too extreme, even for Davis. “This bill does exactly the opposite of the legislation that I sponsored,” Davis said. “I cannot in good conscience support this bill.”
Over the past week, the legislation has been intensely debated in a half-dozen committees and in the House and Senate for a total of more than six hours. Lawmakers have openly acknowledged the bill is a response to the nuisance suits currently in federal court. Murphy-Brown lost the first case, and the jury awarded 10 plaintiffs $50 million in compensatory and punitive damages. However, because of a state cap on punitive damages, the judge reduced the total amount to $3.25 million.
None of the bill supporters has acknowledged the residents, and instead has accused “out of state lawyers” of swooping in for a big payday. Dixon went so far as to accuse witnesses of falsifying their testimony, which would be perjury, a crime.
Blackwell, an attorney, underscored the right of Americans to have equal access to the law.
“Regardless of whether you’re wealthy or poor you can tell your story in court. You can call witnesses. The problem with the bill is that our desire and respect for agriculture is so great, that we’re saying,’ We’ll close the door to your being sued because you’re a favored party. We like you that much.’”