Politics & Government

After Smithfield lost millions in lawsuits, NC changed a law. Was it constitutional?

Lawsuits pit hog farms against their neighbors

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.
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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.

After North Carolina’s pork industry began facing — and then losing — high-dollar lawsuits related to pollution and foul odors, state lawmakers passed new legal protections for the companies.

But on Wednesday, several environmental and social-justice groups filed a lawsuit over those new legal changes, seeking to have them overturned.

“These laws not only violate the state constitution, but also have disparate impacts on low-wealth and non-white North Carolinians, who disproportionally live where North Carolina has permitted industrial hog facilities to develop and operate,” the lawsuit says.

Specifically, the lawsuit is asking the state courts to overturn the 2017 farm bill and part of the 2018 farm bill. They added new legal protections for the agricultural industry by restricting the ability of people who live near farms to sue over pollution, odor and other problems using “nuisance” laws.

Advocates for farmers supported those bills when they passed and say they are not only legitimate but are still very much needed.

Jake Parker, the top lawyer for the N.C. Farm Bureau, said Wednesday that it’s not just hog farmers who benefit from the 2017 and 2018 changes targeting nuisance lawsuits. He said that without the new protections, nuisance laws could hypothetically be used to sue farmers for using pesticides, kicking up dust while moving equipment, or other activities “that farmers do every day.”

“For us the issue wasn’t about one particular subset of that community,” he said, referring to the hog farm lawsuits that made national headlines. “It was about all of North Carolina’s agricultural industry being protected from these lawsuits.”

Wednesday’s lawsuit, however, isn’t the first challenge to the laws. Democratic Gov. Roy Cooper vetoed both bills when the legislature passed them in 2017 and 2018, but Republican lawmakers had enough votes to override his vetoes both years.

Cooper said protecting the pork industry from nuisance lawsuits would not only harm neighbors of the farms but could also have unintended consequences in other parts of the state. Both times he announced the vetoes, he pointed to how, when he was attorney general, North Carolina used nuisance laws to stop the Tennessee Valley Authority from polluting western North Carolina.

“Special protection for one industry opens the door to weakening our nuisance laws in other areas,” Cooper wrote in 2017 when he vetoed that year’s farm bill. In 2018 he wrote that “giving one industry special treatment at the expense of its neighbors is unfair.”

The lawsuit against the bills filed Wednesday says the two laws were passed “in direct response” to lawsuits filed by people who lived near farms under contract with Murphy Brown, which is owned by Smithfield Foods, which in turn is owned by a Chinese company called WH Group.

The first wave of lawsuits ended with Eastern North Carolina residents winning millions of dollars from the companies.

“Each jury found that the odor, pollution, and other adverse impacts from Smithfield’s swine operations caused unreasonable and substantial interference with the plaintiffs’ use and enjoyment of their property,” Wednesday’s lawsuit says.

The News & Observer has previously reported there are more than 500 people involved in 26 separate lawsuits against Smithfield and Murphy Brown. Most of the cases have not yet gone to trial.

The first four trials resulted in juries awarding half a billion dollars to the neighbors, the N&O has reported, although judges significantly reduced those damages, to about $100 million, because of rules capping how much money companies can be forced to pay in punitive damages.

A Smithfield spokesperson declined to comment on the new lawsuit. Smithfield is not a defendant in the lawsuit, which only names legislative leaders.

Lawmakers respond

Republican Reps. Jimmy Dixon of Duplin County, John Bell of Wayne County and Tim Moore of Cleveland County, the House speaker, issued a statement saying agriculture is the biggest industry in North Carolina and needs to be protected.

“We will continue to fight for hardworking North Carolina farm families and their communities by opposing any coordinated legal assault that seeks to profit off their livelihoods and potentially shut down their farms,” the statement says. “There is no right more fundamental than the right to feed our families.”

Robert Brown, a spokesman for the NC Pork Council, said in an email that the lawsuit “is another effort by fringe groups” and lacks merit.

“Our farms and farmers take seriously the obligation to feed people in a responsible way that protects our communities and supports North Carolina’s rural economy,” he said.

Wednesday’s suit was brought by the Waterkeepers Alliance, NC Environmental Justice Network, Rural Empowerment Association for Community Help and Winyah Rivers Alliance.

They’re being represented by the Julius L. Chambers Center for Civil Rights, which is a Carrboro-based nonprofit group formed by the former leaders of the Center for Civil Rights at UNC-Chapel Hill’s law school.

That center used to represent clients in civil rights cases, including issues of environmental justice. But in 2017 UNC Chapel Hill terminated the jobs of the center’s attorneys, and the UNC Board of Governors banned the center from getting involved in any lawsuits. So the attorneys formed this new nonprofit group, with a similar civil rights mission.

The attorneys are Elizabeth Haddix and Mark Dorosin, who is also an Orange County Commissioner.

Will Doran reports on North Carolina politics, with a focus on state employees and agencies. In 2016 he started The News & Observer’s fact-checking partnership, PolitiFact NC, and before that he reported on local governments around the Triangle. Contact him at wdoran@newsobserver.com or (919) 836-2858.

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