Giant pork producer asks federal court to reinterpret new and controversial NC law, nullify existing nuisance lawsuits

By: - September 7, 2017 1:24 pm

For Murphy-Brown, a major victory in House Bill 467 was not enough.

The world’s largest pork producer has petitioned a federal court to interpret a key part of the controversial law that could nullify 26 lawsuits brought by 541 plaintiffs against the company. While courts are often called upon to interpret laws, in this case, Murphy-Brown is asking a judge to essentially read lawmakers’ minds and divine their intent when they wrote and passed the law.

An amendment to the state’s Right to Farm Act, the controversial legislation capped the amount of money plaintiffs could recover when winning a nuisance lawsuit against industrialized hog farms. Plaintiffs could receive money equivalent to the decrease in the fair-market value of their property — already diminished because of its proximity to stench and flies — but not for odor, mental duress or the general decline in their quality of life.

Gov. Roy Cooper had vetoed the bill, but on May 11, state lawmakers overrode it.

House Bill 467 was now law.

But two weeks later, Murphy-Brown apparently was still dissatisfied. As passed, the law applies only to future litigation, not the nuisance lawsuits already filed and pending in federal district court. But Murphy-Brown preferred the original bill language, which would have applied retroactively and nullified those nuisance lawsuits.

On May 25, company attorneys filed a motion asking a federal district court to interpret House Bill 467.

In court documents, the pork producer argues that it’s merely asking the court to enact a “clarifying amendment” to existing state nuisance law. Applying the law retroactively doesn’t change the substance, the company attorneys claim, but clarifies the intent. “It gives further insight into the way the legislature intended the law to apply from its original enactment.”

Andy Curliss, executive director of the NC Pork Council said it is appropriate to apply that clarification to pending cases. There is precedent, Curliss said. In 2001, former House Speaker Joe Hackney sponsored and passed a bill that applied to pending civil cases related to divorces. “The law was challenged and upheld,” Curliss said.

Will Hendrick is a staff attorney and manager of the Waterkeeper Alliance’s North Carolina Pure Farms, Pure Waters campaign. He sees Murphy-Brown’s motion as a maneuver to circumvent the legislation. “The defendant’s army of lobbyists couldn’t convince the legislature to rescue them from pending lawsuits,” he said. “Now their lawyers are trying to convince the court that those lobbyists were successful.”

When the bill was introduced on March 23, it contained language that if it became law, it would apply to nuisance suits retroactively. (Plaintiffs could still sue for punitive damages and trespass, but the legal hurdles are much higher.)

At the time, bill opponents objected, arguing that it should not involve existing nuisance lawsuits. On April 10, Rep. John Blust, a Guilford County Republican, proposed an amendment to do just that. It reads: “This act shall not affect pending litigation.” The amendment passed 59-56.

Blust could not be reached for comment.

In retrospect, the pork industry was signaling its discontent with Blust’s amendment. That same day, Curliss issued a statement that read in part, “Farmers continue to believe that this clarification is appropriate to apply to pending cases as well as future cases.”

Murphy-Brown’s argument hinges on the bill’s final language after it had ground through conference committee, which does not include the exact words in Blust’s amendment. As ratified, the bill applies to nuisance suits “commenced or brought on or after” the date it becomes law.

Murphy-Brown claims the absence of Blust’s explicit wording, is “evidence” that the legislature “thoroughly considered a version of the statute” that excluded existing lawsuits. By removing those words, lawmakers “then expressly rejected that option.”

However, the final bill language also removes language found in the original version that would have explicitly applied the law retroactively.

There were diverging opinions on the content of the bill, said co-sponsor Rep. Jimmy Dixon, a Duplin County Republican. As the bill was being drafted and redrafted Dixon recalled, “there were a couple of schools of thought,” as to its effective date. He told Policy Watch that the legislation “as written is what it is,” but the court will have to weigh these considerations as it decides whether the pending cases can proceed.

The North Carolina Conservation Network was one of many environmental groups that opposed HB 467. NCCN Policy Advocate Jamie Cole called it “bad legislation, cutting off future access to justice for neighbors injured by hog operations. But one thing everyone in the legislature understood when the bill was passed was that it had been amended to not apply to neighbors already suing the company,” she said. The company’s effort “in its new pleading to rewrite that history shows just how desperate the company is to avoid liability for the injuries it has caused.”

Mona Lisa Wallace, the lead attorney for the plaintiffs, was not available for comment.

Geoff Gisler, senior attorney for the Southern Environmental Law Center, is not part of the lawsuit. His reading of the law is that “there’s no question HB467 doesn’t apply” to the existing cases, he said.

Murphy Brown Motion by LisaSorg on Scribd

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Lisa Sorg
Lisa Sorg

Assistant Editor and Environmental Reporter Lisa Sorg helps manage newsroom operations while covering the environment, climate change, agriculture and energy.