State lawmakers allegedly violated the North Carolina constitution when they passed legislation that stripped residents of their right to sue industrialized hog operations for nuisance, according to a legal complaint filed this week.
The complaint, filed in state court, claims the NC Farm Acts of 2017 and 2018 are unconstitutional because they create a special class — people who are prohibited from suing agricultural and forestry operations from nuisance suits.
The laws also allegedly violate due process and private property rights, including the right of jury trial in these cases.
The complaint asks the court to overturn the Farm Acts on these constitutional grounds.
Elizabeth Haddix and Mark Dorosin, attorneys with the Julius Chambers Center for Civil Rights, filed the complaint on behalf of their clients: REACH (Rural Empowerment Association for Community Help, based in Duplin County; the NC Environmental Justice Network, Waterkeeper Alliance and Winyah Rivers Alliance).
The defendants are House Speaker Tim Moore, Senate Pro Tem Phil Berger and the state of North Carolina.
Gov. Roy Cooper vetoed the bills, but the legislature overrode his vetoes.
Devon Hall, REACH’s co-founder and program manager, lives near 30 industrial hog operations in Duplin County, although he is not a plaintiff in any nuisance cases. “This is my family’s home place,” Hall said in a prepared statement. “I believe that the North Carolina General Assembly overstepped its constitutional grounds to block me or anyone else from seeking justice in court from anyone that has caused unreasonable harm to a neighbor. How is it that the state can take away my community’s ability to protect our homes and health? How can that be right?”
The Farm Acts sought changes to the state’s “Right to Farm” laws. They were a direct rebuke to the dozens of nuisance suits that had been filed in federal court before the laws were passed. The 2017 Farm Act — House Bill 467 — was introduced within weeks of the court’s ruling that the nuisance cases could go to trial. The legislative record, which is detailed in the complaint, made clear that it was “to pull Smithfield’s chestnuts from the fire.”
The 2018 Farm Act was introduced within three weeks of a verdict in the first nuisance trial.
A year ago, on the House floor, Rep. Jimmy Dixon, proclaimed, “the bill is clear … we’re trying to limit lawsuits.”
Legislation intended to thwart nuisance suits
In the past year, juries have awarded tens millions of dollars in damages to neighbors — all of them Black — of enormous hog farms, whose pigs were owned by Smithfield/Murphy-Brown, the world’s largest pork producer. In all those cases, juries determined that the farms had unreasonably prevented the neighbors from the full use and enjoyment of their property — the bedrock of nuisance law.
Smithfield/Murphy-Brown has appealed the verdicts to the Fourth Circuit Court of Appeals. Lawyers for the company are arguing that the Farm Acts be applied retroactively to dismiss all of the nuisance cases.
The nuisances posed by many Smithfield farms are significant: The company has failed to upgrade its antiquated waste management systems, resulting in putrid open-pit lagoons holding millions of gallons of hog feces and urine. That waste is then sprayed onto fields, and drifts onto neighboring properties, including the homes.
North Carolina Central University Law Law Professor Brenda Reddix-Smalls, who is not involved in the case, said “the constitution is very clear that special laws create unreasonable classifications” — that one group, the hog industry, is being treated differently than the ordinary citizen in North Carolina. “You are carving out a business interest against your own citizens.”
“The legislature says, ‘I don’t give a damn what the courts say.’ They’re tinkering and amending, and taking out what they think is unconstitutional,” Reddix-Smalls said.
The 2018 Farm Act was introduced, said Sen. Brent Jackson at the time, to make it clear to judges what the legislature intended: To eliminate “frivolous” lawsuits.
However, there are already legal safeguards to prevent frivolous lawsuits, Haddix said.
Nonetheless, the 2018 legislation further tightened restrictions: potential plaintiffs have to live within a half-mile of the offending farm, and must file their lawsuits within a year of the date the hog farm began operating.
The second stipulation is impossible to achieve. A 2007 moratorium prohibits new or expanded hog farms that use a lagoon and sprayfield system. That means the offending farms would have begun operating more than 12 years ago.
The NC Pork Council lobbied heavily for both Farm Acts, and told lawmakers in committee that it saw the legislation as a response to the “financial uncertainty” created by the nuisance suits.
In response to this week’s constitutional challenge, a spokesman for the Pork Council released this statement:
This lawsuit is without merit. The legislation was debated thoroughly in committees and on the floors of both chambers. The entire North Carolina agriculture industry remains grateful for the bipartisan support from lawmakers.
This is another effort by fringe groups who are adamantly opposed to livestock agriculture. Our farms and farmers take seriously the obligation to feed people in a responsible way that protects our communities and supports North Carolina’s rural economy.”
Republican Reps. Jimmy Dixon of Duplin County, John Bell of Wayne County and Tim Moore of Cleveland County, the House Speaker, issued a statement to Raleigh’s News & Observer saying agriculture is the biggest industry in North Carolina and needs to be protected.
“We will continue to fight for hardworking North Carolina farm families and their communities by opposing any coordinated legal assault that seeks to profit off their livelihoods and potentially shut down their farms,” the statement says. “There is no right more fundamental than the right to feed our families.”
However, plaintiffs in the nuisance suits, as well as the complainants in the constitutional challenge, have repeatedly stated or testified that they don’t oppose hog farmers; nor do they want the farms to close. They’ve asked that Smithfield upgrade its waste technology to eliminate or sharply reduce the nuisance.
The issue of race has also loomed over the nuisance lawsuits. Although not explicitly argued in court, it’s been obvious that the plaintiffs have all been Black. That’s not an accident. Industrialized hog operations are disproportionately located in low-income neighborhoods and communities of color, according to census data. (The EPA agreed, which forced the Department of Environmental Quality to address water and air pollution, as part of a civil rights settlement. Haddix and Dorosin also represented the plaintiffs in that complaint.)
“Here we have a location issue,” Reddix-Smalls said. “Farms, landfills, prisons — they tend to locate in less dense areas, on cheaper land. That’s where black people live and gather. But it’s underestimated how important environmental concerns are in our community.”
Because this is a constitutional challenge, the Chief Justice of the state Supreme Court — Cheri Beasley — will appoint a three-judge panel composed of Superior Court judges to hear the case.
Disclosure: The North Carolina Justice Center filed a brief in support of plaintiffs suing Smithfield/Murphy-Brown for nuisance. NC Policy Watch is a project of the Justice Center, but had no role in the decision to file the brief nor its contents. In order to maintain its editorial independence, Policy Watch has not read the brief and has not communicated with anyone at the Justice Center about it.