Politics & Government

Think the hog farm next door stinks? Lawmakers limit neighbors from making a big stink in court.

Nuisance or necessary? Both sides debate proposed farm bill.

A provision in a proposed farm bill would restrict neighbors of farms or processing facilities from suing for damages. Both sides argue their positions at a General Assembly committee meeting.
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A provision in a proposed farm bill would restrict neighbors of farms or processing facilities from suing for damages. Both sides argue their positions at a General Assembly committee meeting.

In a federal courtroom in the North Carolina capital, a former textile worker told a jury about the downsides he had experienced while living next to one of the hog farms operated by Smithfield Foods in the eastern part of the state.

Elvis Williams, 60, told jurors that when he moved to his mobile home nearly three decades ago he did not know a farm was next door. The landowner raised hogs then, but over the years the farm operated by the Virginia-based Smithfield Foods has grown to 4,700 hogs with open-air waste facilities. Williams complained about swarms of flies, odors and loud trucks coming and going to remove dead hogs from pens they died in the night before, according to the Associated Press.

As Williams shared his experience with jurors on Tuesday, North Carolina lawmakers were gathered in a room about a half mile away, worried sick about the impact that his lawsuit and nearly two-dozen nuisance cases like his could have on the pork industry in this state.

By Thursday, the state House and Senate had both adopted a new Farm Act, Senate Bill 711, that limits when and how hog-farm neighbors can file nuisance suits. It launched heated debate on the House floor.

It now goes to Gov. Roy Cooper, who will review the legislation before deciding whether to veto it, his spokesman Ford Porter said on Thursday.

The Williams case is the second of the nuisance complaints to go to trial.

In April, a jury awarded $50 million to 10 neighbors of a different hog farm. A little more than a week after that landmark verdict, the federal judge who presided over the trial reduced the damage sentence from more than $50 million to $3.25 million to comply with a 1995 North Carolina law capping damages.

Three public nuisance lawsuits filed against Smithfield Foods and Murphy-Brown hog farm operations have so far been decided, with damages in excess of $500 million awarded to plaintiffs.

Under the bill, a nuisance lawsuit can't be filed unless it's done within a year of the establishment of the agriculture or forestry operation on which the complaint is focused or within a year of "fundamental change." "Fundamental change" does not include changes in ownership, technology, product or size of the operation.

The bill further limits when punitive damages can be awarded. Unless a farm operator has a criminal conviction or has received a regulatory notice of violation that state farm laws were broken, such damages won't be allowed.

The provision was added to the Farm Act, which also prohibits soy, almond, coconut and other plant-based milk suppliers from labeling their products as "milk" in North Carolina.

Though there was some debate about the milk provision, lawmakers made impassioned speeches on the floor about the hog farm addition.

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'They're doing it right'

Sen. Brent Jackson, a Sampson County Republican and farmer, was the bill's lead sponsor.

"These pig farmers," Jackson said during one of the debates, "have abided by every rule and law this building has ever passed, and they're doing it right. But then they still get sued."

On another occasion, Jackson reminded his fellow lawmakers that the meat they pick up from the grocery store comes from farms.

"I should not have to be standing here defending this," Jackson said. "There's not a dang one of you sitting in this room that has not eaten today."

The bill sponsors described their proposal as one that would protect small farms, "the little guy," in the wake of the jury verdict in the first nuisance case.

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But two lawyers in the House offered a different take on what happened in the federal courtroom in April at the first of the trials being carefully watched by pork producers, environmentalists and others across the country.

Rep. Billy Richardson, a Fayetteville Democrat and attorney, looked up the trial after the House discussion on Wednesday. The jury, he said, was made up of four Democrats, four Republicans and two unaffiliated with either party.

"This was a jury of educated people," Richardson said. "They looked at facts of the case and they made a ruling primarily on the testimony of this CEO and his callous indifference."

The lawsuits filed by some 500 residents against Murphy-Brown/Smithfield Foods were borne out of a legal argument that a team of lawyers began crafting in 2014. They focused on the pork industry giant's continued use of "anaerobic lagoons" in which hog waste is stored behind livestock pens, then liquefied and sprayed onto nearby fields.

The lawyers went after the pork producers, contending that such a practice presents a public nuisance.

North Carolina has about 9 million hogs on nearly 2,300 hog farm operations. Iowa is the only state with more hogs, showing an inventory of about 21.8 million in 2017.

In the first trial, Richardson said, a company executive greed there was an odor from the farms, but acknowledged that he had not looked into transitioning to a different waste disposal method even though a former attorney general approached the company about switching to new methods. Jim Hunt, who was governor in the 1990s, also worked to develop a long-term plan with Smithfield in the 1990s for a transition, according to Richardson.

Twenty-first century technology makes it possible for farmers to trap the waste's odor and the greenhouse gases it generates.

But Smithfield has claimed such a transition would be cost-prohibitive.

"I think it is imperative moving forward that if we don't do something to let (Smithfield) know they are welcome here, that they'll be leaving this state," Jackson told a House committee earlier this week. "Because I do know there's other states courting them to leave. And if they leave this state, these rural and small towns we have in Eastern North Carolina will dry slam-up. They're having a hard enough time as it is today to survive."

Richardson reminded lawmakers on Thursday that the jurors who reached the verdict that prompted the new restrictions on negligence cases were not unfamiliar with rural life.

"These jurors came from rural counties," Richardson said. "It was a unanimous verdict."

In a video produced by the Farm Sanctuary, Duplin County resident Elsie Herring talks about living beside the spraying fields of an industrial hog farm.

Importance of pork industry

Mayors and elected officials from towns and counties heavily populated by hog farms weighed in on the debate earlier this week, bringing forward resolutions with their support of the pork industry.

Farmers filled the House gallery on Wednesday, and pork industry advocates spoke at a committee meeting Tuesday in favor of the new restrictions.

North Carolina's Agricultural Commissioner Steve Troxler also issued a statement earlier this month about how much rural areas rely on agribusiness.

"North Carolina’s pork industry has been in the news a lot lately, but not in a way that tells the true story of its contributions to our economy," Troxler said. "While the industry has drawn attention as the subject of nuisance lawsuits, what has been consistently overlooked is the significant economic contributions the pork industry makes in terms of jobs and its role in producing safe and affordable food for consumers. I consider the production of food and fiber to be admirable and certainly not a nuisance, and I want people across the state to understand how important agriculture, including the pork industry, is to our state."

Throughout the week, the bill limiting negligence suits raised questions from Democrats and Republicans.

061218-FARMBILL-CCS005.jpg
Duplin County Commissioner Doug Grady speaks in favor of the bill as the N.C. House Agriculture Committee takes up discussion and public comment on a Senate farm bill in the Legislative Office Building in Raleigh on June 12, 2018. Among other things, much discussion involved the provision that would limit neighbor's ability to sue a nearby farm for odor or other "nuisance" factors. He was concerned about the economic impact of losing farms and related industries. Chris Seward cseward@newsobserver.com

Some questioned whether the proposal would stand up to a constitutional challenge in court.

It only applies to the agricultural and forest industries.

Former lawmaker Paul "Skip" Stam, a Wake County Republican, former House member and lawyer, described the provision as "a serious and direct threat to the private property rights of homeowners throughout the state."

He referred lawmakers back to the laws of England that were incorporated into the law of North Carolina in 1776 that spoke specifically to nuisances: "if a person keeps his hogs, or other noisome animals, so near the house of another, that the stench of them incommodes him and makes the air unwholesome, this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house."

'An iron curtain has descended'

Rep. John Blust, a Guilford County Republican and lawyer who is not seeking re-election, reminded his fellow lawmakers on Wednesday of a phrase engraved on the wall of the U.S. Supreme Court — "Equal Justice Under Law."

"Why do these particular defendants get treated differently?" Blust asked of the farmers and forest industry named for protections.

On Thursday, frustrated by the pace with which the bill moved through both chambers, Blust criticized the process with words that brought praise on social media. He complained that the legislation had been crafted and pushed forward by a small group of lawmakers who wielded much power.

"An iron curtain has descended on this legislature and it just will not let go," Blust said.

"A few people call all the shots, and their will governs, and I know the members cannot afford to go against it," he said. "I hate that you can make good arguments, right on point, and somebody holds a thumb up or down, and that determines it. That's a very regrettable situation."

Rep. Michael Speciale, a Republican representing Beaufort, Craven and Pamlico counties, questioned the urgency that lawmakers had placed on the Farm Act that he otherwise wanted to support.

"Our obligation is to the farmers, but it's also to everyone else that lives in that area, but if we deny them their rights, we're not doing our job," Speciale said.

Violet Branch, a Duplin County resident, traveled to Raleigh for one of the debates before the vote and tried to assure lawmakers that hog farm neighbors were not trying to put farmers out of business.

"They can have all the hogs they want. Just keep the scent to themselves," Branch said.

Other lawmakers opposed to the bill reminded their colleagues that hog-farm neighbors went after the corporations that dictated the farming practices and open-air waste lagoons.

Farm Sanctuary has a campaign focused on the NC pork industry called “Meet Your Neighbors,” and recently released this video titled “On the Road in Duplin Country."

Makes more than Musk and Cook

Smithfield Foods, which describes itself as a a "$15 billion global food company and the world’s largest pork processor and hog producer" is owned by Hong Kong-headquartered WH Group, which generated $22 billion in revenues last year.

Earlier this week, Blust left a Bloomberg news article on the desks of his fellow House members: "This Chinese Pork CEO Was Paid More Than Tim Cook or Elon Musk."

The article states that "Wan Long, a former factory manager who helped turn a humble state-owned meat processor into the world’s biggest pork producer," the CEO of WH Group, received $291 million in salary and stock payments last year.

"The suit wasn't against the farmers," Rep. Pricey Harrison, a Guilford County Democrat, responded in one debate this week. "It was against the larger industry."

CORRECTION: This report has been corrected to reflect that Elvis Williams testified on Tuesday that he did not know a farm was next door when he bought his property.

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