Proposed legislation would dramatically weaken state hog farm oversight

[Editor’s note: The Farm Act will be discussed at the Senate Agriculture and Natural Resources Committee today at 10 am. Policy Watch will continue its coverage of the legislation and the budget bills on the Progressive Pulse blog after the committee meeting.

Upon being contacted for comment on this story, the North Carolina Pork Council offered the following response: “NC Policy Watch is a project of the NC Justice Center, which has a stated position in legal filings that our farms ‘create unfair and profoundly deleterious consequences for neighboring homeowners of modest means.‘

“We see no reason to now participate in your profoundly misguided and sadly divisive advocacy about farms where people live, work and play. Fairness does dictate that when you write about our farmers, you should prominently disclose your partialities – of which there are many.”

In fact, Policy Watch strictly adheres to the Society of Professional Journalists’ code of ethics and maintains a barrier between itself and the litigation arm of the Justice Center. In the instant matter, Sorg did not even know of the Justice Center’s participation the referenced court filings until the Pork Council notified her.]

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A sentence here, a paragraph there. A strike-through, a repeal, a new section.

Individually, the Farm Act and the House and Senate budgets chip away at the incremental yet significant progress the state has made toward regulating industrialized livestock operations.

But taken in total, a half-dozen provisions create a safe house where these operations, particularly swine farms, can clandestinely conduct their business.

“It’s a coordinated and multi-pronged attack,” on laws protecting the environment and public health, said Will Hendrick, attorney for the Waterkeeper Alliance.

• The Farm Act exempts many agricultural documents from public records laws – clearly targeting plaintiffs in recent swine nuisance lawsuits.
  
• The House and Senate budget bills appropriate nearly $1 million for experimental biogas and lagoon projects, whose details would be secret. The Farm Act also exempts swine operations that use hog waste as biogas from the state’s odor rules.
• The Farm Act also eliminates the requirement that a professional engineer design lagoon and biogas systems. Those designs and related documents would also be confidential.

The secrecy of these records stems from language in the Farm Act:

Records and documents that are “generated by or for soil and water conservation districts” involving “individual landowners and agricultural producers” would be confidential. 

Soil and Water Conservation Districts and the State SWCD Commission are under the Department of Agriculture.

These documents contain water quality and quantity information, required as part of a pollution control program. That program is funded by the state and federal government under an Agricultural Cost Share agreement.

Under the proposal, no one, including plaintiffs in the swine nuisance lawsuits, could obtain these documents under the Public Records Act; the documents could still be subpoenaed.

In each of the four previous trials, plaintiffs’ attorneys entered dozens of soil and water conservation documents into evidence. Some of these records showed that lagoons and spray fields were inaccurately designed. As a result, the lagoons contained more hog waste than they were constructed for, contributing to the odor, flies and other nuisances that juries determined interfered with the neighbors’ enjoyment of their property.

Defendant Smithfield/Murphy-Brown lost all four of the nuisance lawsuits in US District Court, although the company has appealed them to the Fourth Circuit.

Farmers’ applications for federal funds and the contract documents that require approval of soil and water conservation officials would still be public.

However, that still leaves entire categories of documents off-limits: Lagoon construction, design criteria, operational reviews, assessments, notes of site visits and complaints “would all be behind a veil of confidentiality,” said Ryke Longest, director of the Duke University Environmental Law Clinic.

Heather Overton, spokeswoman for the state Department of Agriculture, said federal law allows these records to be kept confidential.

[Update: Longest responded to Overton’s assertion, saying “federal FOIA exemptions apply only to federal records for federal programs. State cost-share records are not exempted from FOIA. This law change would cover all documents related to the state cost-share program, whether submitted by private parties or the district.”

That is partially true, and has been for decades. But it is unclear why lawmakers are now calling for secrecy. Asked via email if the Agriculture Department requested the change, Overton did not answer the question.

Brooks Fuller is the director of the North Carolina Open Government Coalition at Elon University. “What is especially troubling” about this provision is that it exempts records related to “the implementation and supervision of water quality programs,” including the allocation of grant money and federal dollars.”

The budget appropriates $450,000 for swine biogas projects — which would be exempt from odor rules — and another $450,000 for farms that want to install “innovative lagoon technology.” Sludge that has accumulated at the bottom of the lagoons for decades would be deposited in human–made wetlands, where it would dry and could be shipped offsite.

Both budget versions shift public money from an Agricultural Farmland Preservation account to a Commerce Department fund. Eligible farms could apply for the money as part of a federal-state cost-share program to install biogas systems.

Other than boilerplate contracts and applications, those records would also be off-limits.

The bill is also vague about who would receive the funds — the contract farmer, or the behemoth pork companies, such as Smithfield Foods and Prestage Farms.

It’s also unclear how many farms would receive funding.

“How this money is spent, especially given recent and growing environmental concerns in the state, is a serious issue for North Carolinians,” Fuller said. Although individual landowners may have a valid interest in privacy, that interest yields when they are receiving technical and financial assistance from governmental sources.”

The exemption would hamper the ability of journalists and concerned citizens to investigate activities at specific farms. Last year, Policy Watch reported on Billy Houston, a Duplin County Soil and Water District technical specialist, who allegedly falsified lagoon records at more than 30 farms. The farmers reportedly didn’t know Houston had allegedly lied about their lagoons.

Some of those records, which named the farms, were available through the NC Department of Environmental Quality, but others came from the Duplin County Soil and Water District. Historical documents showed the Soil and Water Conservation Board had been concerned about county employees’ moonlighting — including Houston’s — but allowed the practice to continue.

“I like the idea behind Soil and Water Conservation Districts generally” — which started in the 1930s as a response to the Dust Bowl, said Longest. “But now they’ve been subverted to regulatory capture by industry.”

Details of other new provisions in the legislation would also be confidential. Soil and Water Districts would no longer require professional engineers to plan, design and certify the biogas and anaerobic lagoon projects. Instead, those districts would hire anyone they believe is qualified. Project documents would also be off-limits to the public.

The wholesale classification of documents as confidential is part of a larger trend over the last few decades Fuller said, “where the legislature has passed more and more exemptions into public records law. Instead of addressing public policy problems in the open, they pass laws that further obscure relevant records.”