Catherine Clabby

News reporter and editor. Duke University journalism faculty. Co-edit 9th Street Journal at Duke Reporters' Lab. Alum reporter @ North Carol

Jun 7, 2018
2 min read

Most farms using open lagoons and sprayers to manage manure and urine could be shielded from nuisance lawsuits.

Now that neighbors to one hog farm have one court victory against the world’s largest pork producer, state legislators are moving to shield hog farms from nuisance lawsuits.

This is not the first time the General Assembly has tightened protections for both livestock growers and the corporations that own the animals they raise. They’ve done it multiple times in recent years, sometimes in direct response to court cases.

The 2018 farm bill, on a fast track for approval in Raleigh this week, would create a statute that says a farm cannot be considered a nuisance in a courtroom if that farm complies with relevant regulations and operates like others in its “region.”

Legislators must take steps to defend an agricultural sector that is so important to North Carolina’s economy, said bill sponsor Sen. Brent Jackson, R-Autryville, who represents Duplin and Sampson counties, the two top hog-selling counties in the United States.

“Our goal is to ensure that all farming operations are protected from frivolous lawsuits,” Jackson said in an email Wednesday. “Due to recent judicial rulings, it has become blatantly obvious that the legislature must take action to clarify our intentions and correct these misguided rulings.”

But one of a team of in-state and out-of-state lawyers representing 500 citizens who are suing Smithfield Foods and alleging nuisances at 26 farms sees it differently.

The new bill is an overreach that could gut the property rights of rural North Carolinians such as his team’s clients, said lawyer John Hughes. They live in neighborhoods established before intensive livestock farming expanded nearby and now live, on average, within half a mile of a hog farm.

This is one of the images attorneys have prepared for lawsuits against Smithfield Foods, filed by neighbors in Sampson County. It shows people living close to hog barns, where thousands of animals are kept confined until they get big enough for slaughter. Source: Wallace & Graham law firm.

“A lot of these families have family roots going back to Reconstruction. They reside in communities that were already there,” said Hughes, an attorney with Wallace & Graham Law firm in Salisbury.

It’s the waste

Without explicitly saying so, Senate Bill 771 would exempt lagoon and spray systems, which are commonly used in Eastern North Carolina hog farms. Jackson said it would not affect existing lawsuits.

The fact that concentrated animal feeding operations (CAFOS) use open lagoons to store waste and then spray it on nearby fields to make room for more is at the crux of the plaintiff and many more complaints against Smithfield.

This older technology can generate air and water pollution, including floating particles of feces, critics say. A New York scientist hired by lawyers representing neighbors in the lawsuits has testified in court and in a deposition that he’s found DNA evidence of pig feces on exterior walls of multiple neighbor homes, even inside one kitchen.

In the active lawsuits, neighbors say Smithfield should take steps to require farmers to install more expensive waste management technology that reduces the airborne release of manure and urine components from the farms.

Protective moves

The last time legislators moved to protect the hog industry was last year. Republican legislators pushed then to derail those lawsuits by limiting how much money people could be awarded in nuisance damages to the loss of value in their homes.

But after protests, including by some Republican House members, that such a step would be tampering with another branch of government, the cap was imposed only on lawsuits filed after its passage.

graph with populationo and hog inventory dating back to 1870. while population climbs at a relatively steady rate, hog population jumps from a little over 2 million to close to 10 million within the course of several years in the late 1990s
Growth in the number of hogs raised in North Carolina rose steeply starting in the 1990s.

That protective measure followed several significant changes legislators made to the state’s Right to Farm law in 2013. That action expanded which farms are immune from nuisance lawsuits to include farms that changed ownership or size, were not farmed as long as three years, or changed the type of agriculture (or forestry product) they produce.

Changes in the legislation occurred weeks after the initial filings of nuisance suits against Murphy-Brown, which is owned by Smithfield Foods, now part of giant Chinese pork producer WH Group Ltd.

In April, a jury awarded $50 million to neighbors of a Bladen County hog farm raising Smithfield hogs in a strong case plaintiff attorneys handpicked to begin the trials. After a motion by Smithfield, U.S. District Court Judge W. Earl Britt reduced that to $3 million in order to conform with a 1995 state law that limits court awards.

The second trial, expected to be Smithfield’s strongest case, began on May 29 in Raleigh, where testimony continued this week as legislators pushed for the new bill.

In that case, only two plaintiffs are pursuing nuisance claims against a farm raising Smithfield hogs in Duplin County. One moved into an established neighborhood after a portion of a two-site CAFO operation had already launched.

Supporters: Pork is vital

Earlier this week, state Agriculture Commissioner Steve Troxler released a statement defending the state’s $2.1 billion pork industry.

“North Carolina ranks second nationally in pork production, and our state is home to the largest processing facility in the world. In our bigger cities, it is easy to lose sight of the impact agriculture has on our lives, but for many who live in rural areas of the state, its impact is felt every day,” he wrote.

On Wednesday he defended the agriculture bill that Jackson and others introduced in person during a Senate Judiciary Committee meeting.

“We can sue North Carolina agriculture right out of the state,” Troxler warned.

Made public Tuesday for the first time, the new bill stirred some of the same passionate opposition seen in Raleigh last year when the nuisance-cap bill, as first written, could have affected existing lawsuits.

Retired Republican House member Paul Stam, a former House majority leader and speaker pro tempore, traveled to the legislature to urge substantial changes in the bill at the committee meeting.

Among his criticism was the legislation would shield farm owners from responsibility for producing nuisances based on the fact that others use the same practices on farms in their “region”.

“Say I get pulled over for driving 85 miles per hour on Highway 40 and I say to the officer: ‘Well everybody’s doing it.’ I’d be laughed out of court,” Stam said, adding that the bill as written would suggest that “if in a region everybody is doing bad practices, nobody is. It’s contrary to fact and it’s topsy-turvy.”

Jackson thanked Stam for coming but said he took offense at the suggestion that the bill would protect bad actors. He said that doesn’t acknowledge the bill would only protect farms following applicable laws and regulations as well as widely used farming methods.

“Bad actors will not be afforded this opportunity. It will protect the stand-up operating, good farming working people out here,” Jackson said.

Whose rights?

Elise Herring, a resident of Wallace and a lawsuit plaintiff, told senators Wednesday that the bill moving so quickly in the General Assembly is worse than legislation passed last year. The previous bill limited damages in future nuisance lawsuits to lost value in a home; the current bill would exempt most hog farms from any nuisance lawsuits at all.

a black woman stands in front of a gallery of seated people, who look on. she was speaking out against the law that would shield hog farms from nusiance lawsuits
Elsie Herring, one of the plaintiffs in the Smithfield cases, stood to testify during a Senate Judiciary hearing that took place Wednesday at the legislature. Photo credit: Rose Hoban

Herring lives on property where she grew up, land her grandfather purchased in 1891. After a nearby CAFO came online in 1995 her mother, who died at age 99, became a “prisoner in her own home” on land where she’d resided all her life.

“I encourage you to think about the people who are impacted. There are thousands of us. This is real. We are living with animals. They have all the rights, we have none,” Herring said.

Some legislators have followed the court cases closely.

State Rep. Jimmy Dixon, R-Warsaw, an outspoken defender of hog farms, this week said he thinks Judge Britt has been “very biased and very prejudiced” against Smithfield in his presiding over the Smithfield nuisance lawsuits.

For one, Dixon said, the judge rejected a Smithfield request that jurors visit the Bladen County farm that was the focus of the first, successful lawsuit.

“Say I’ve been accused of something. My lawyers say ‘I would like the jury to come out and see the farm’. The judge wouldn’t allow that,” Dixon said. ”Even King Solomon talked to both women.”

But Hughes, the plaintiffs’ attorney, said he sees evidence to the contrary.

Britt, he said, reduced the jury award down to $3 million in that first case after Smithfield lawyers filed a motion arguing that a 1995 state law limited such damages.

“That doesn’t sound very biased to me,” Hughes said.