The Pulse

NC Farm Act, fattened with protections for hog industry, up for Senate vote at noon

By: - June 7, 2018 9:32 am
Sen. Brent Jackson: “The judge was wrong” to let nuisance lawsuits move forward. (Photo: NC General Assembly)

Room 1127 of the Legislative Building was hot, noisy and crowded, with onlookers packed cheek to jowl. The scene at yesterday’s Senate Judiciary Committee meeting felt temporarily like a hog confinement barn, but without the manure.

However, private property and environmental advocates would argue that the NC Farm Act stinks. Among its many problematic provisions, Senate Bill 711 would immunize industrialized hog operations from virtually all nuisance lawsuits. It would also establish the outdated and noxious method of open-air waste lagoons and spray fields as the preferred method of managing millions of tons of hog manure and urine.

Sen. Brent Jackson, a Republican who represents three major hog-producing counties — Duplin, Sampson and Johnston — insisted that the bill would still hold “bad actors” accountable.

The problem is, that if the bill becomes law, there will be very few, if any bad actors.

The key section, “Clarify and Amend North Carolina Right to Farm Law” establishes that farms are presumed not to be a nuisance if they are complying with state regulations — regulations that are weak and only lightly enforced.

“This is not just a clarification” of the law, “but a radical change,” said Michelle Nowlin, a supervising attorney at Duke University’s Environmental Law and Policy Clinic. “It deprives people of their fundamental rights and sanctions a taking of property to benefit private industry.”

Only the most egregious, flagrant violations would be vulnerable to a nuisance lawsuit. For example, Lanier Farms in Jones County discharged millions of gallons of hog manure and urine into the Trent River last September. No one filed a nuisance suit, but because of the farm’s 10-year violation history, state officials finally fined Lanier $64,000, the largest such penalty against a hog farm. Faced with bad publicity and potential Clean Water Act violations, Murphy-Brown pulled its pigs from the operation, which is now closed.

Nor would hog operations be considered a nuisance if they are managed in a manner “substantially consistent with practices, methods or procedures generally accepted and routinely utilized by other agricultural and forestry operations in the region.” (The bill also applies to forestry and all agriculture, but hog farms generate the most complaints.)

Deciphered, this means that if all hog farms in a “region” use open-air manure lagoons and spray that feces and urine onto their fields, then they are not a nuisance.

“People have to live in these conditions,” said Sen. Paul Lowe Jr., a Forsyth County Democrat. “It’s horrifying to think about. I hate to think about what it does to property values. It turns my stomach to hear some of this stuff.”

Former lawmaker Paul Stam, a staunch conservative and private property rights advocate, even argued against the bill. “If I get pulled over for driving 85 miles per hour and tell the officer everybody’s doing it,” Stam said, he would still get a speeding ticket.

Sen Paul Lowe Jr: “It turns my stomach to hear some of this stuff.” (Photo: NCGA)

“It presumes sprayfields and lagoons are the preferred method,” Nowlin told the committee. She noted that the bill contradicts the state’s moratorium on new or expanded hog farms, which requires those operations to use the best waste management technology. “It’s a disincentive to innovate.”

In fact, the farms that upgrade their waste management operations could be vulnerable to nuisance suits because those operations would be outliers in their regions.

“This is a carve-out,” said Sen. Floyd McKissick Jr., a Durham Democrat, in opposing the bill. “And there’s no reason to carve out special conditions for agriculture. We’re determining winners and losers.”

North Carolina’s hog industry, as well as Agriculture Commissioner Steve Troxler, have relied on scare tactics to fight the nuisance suits. “The lawsuits can put us out of business,” Troxler told the committee, “and sue these farms right out of the state.”

That’s unlikely, considering Murphy-Brown/Smithfield just invested $100 million to upgrade its slaughter plant in Tar Heel. In fact, the greatest threats to the hog industry are arguably the tariffs levied by other countries on US pork exports. For example, in retaliation for the Trump administration’s tariffs on steel and aluminum imports, Mexico just announced it would place a 20 percent tax on pork entering that country from the US. About a quarter of American pork exports go to Mexico.

The timing of the bill language, unveiled only two days ago, coincides with nuisance suits being heard or pending in federal court, overseen by US District Court Judge Earl Britt. In April, Murphy-Brown lost the first case in which the jury awarded the 10 plaintiffs a total of $50 million in compensatory and punitive damages. Because of a state law capping punitive damages, Britt reduced the amount to $3.25 million.

Sen. Jackson said Britt was wrong to allow any of the cases to go forward. “He has opened up the door for every farmer to be sued out of the state.” However, the farmers themselves are not being sued; only Murphy-Brown/Smithfield, a billion-dollar company.

The second case, one of dozens scheduled throughout the year, is being heard now. But Jackson said the bill intentionally would nullify any cases that were not being tried by the day the legislation became law. Dozens of nuisance suits, already filed with the court, would be thrown out. Murphy-Brown would not have to risk losing again.

Sen. Warren Daniel, a Republican from Burke and Cleveland counties, proposed an amendment that would allow the dozens of nuisance cases pending before the court to continue. He later withdrew the amendment.

With the hog industry off the legal hook, neighbors must live with the stench, flies, buzzards, gnats and bacteria that is drifting to their homes. They can’t sue. They’re just supposed to get used to it — even if, like Elsie Herring of Duplin County, they lived on their property long before the farms arrived.

“Here we are again,” Herring told the committee. “Think about the people affected. This is real. The company has all the rights and we have none. We are suffering.”

The bill cleared both the Senate Judiciary and Rules committees with a favorable report. The full Senate is scheduled to vote on the bill at today’s session, which begins at noon.

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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.