‘Laws, like sausages, cease to inspire respect in proportion as we know how they are made.” – John Godfrey Saxe, The Daily Cleveland Herald, March 29, 1869
I love good sausage and good law. But in both cases, there is too much temptation for the makers to lard up their products for their own benefit, and the only restraint is transparency. Unfortunately, while sausage makers must list their ingredients on the label, lawmakers write their own rules about how the laws get made and can cut out the public in favor of special interests like the international swine industry.
As far back as the 18th century, American lawyers have understood that the smell of hogs can be a nuisance and that a neighbor has a right to demand in court that the hog farmer stop stinking up his property. Blackstone’s Commentaries, the main legal textbook of our founding fathers and the first American lawyers and judges, taught that “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.” This was a simple legal rephrasing of the golden rule as applied to property: No one has a right to use their property in a manner that prevents a neighbor from using theirs.
In March, North Carolina Sen. Brent Jackson introduced the Farm Act of 2015, a noncontroversial bill that was only 16 pages long. On May 12, the Farm Bill was completely rewritten to a new bill of 24 pages. The swine industry’s boosters found that they could insert brand new provisions in the Farm Act after the crossover deadline and limit public debate.
One provision in the rewritten bill will create loopholes in the swine farm moratorium that has been on the books since March 1997. Because neighbors of hog farms needed protection from odors, ammonia emissions, water pollution, viruses and bacteria, the moratorium of pollution control equipment meets the standards set by the legislature.
North Carolina’s experience since the swine farm moratorium has shown that pollution control creates jobs while protecting neighbors from nuisance conditions like odors and health threats like bacteria. N.C. State University researchers who teamed up with faculty from the University of North Carolina at Chapel Hill and Duke University found technologies that would solve these problems for less than 40 cents per pound of live hog steady state weight. While the most expensive of these technologies cost four times more than lagoons and sprayfields to build, they also produced energy and reduced greenhouse gas emissions, two sources of revenue that could offset the costs of the equipment, create industries and employ more North Carolinians while also cleaning up our air and water.
Anyone who drives through Duplin or Sampson county
during the early summer gets a sample of the stench residents suffer daily. The swine industry’s boosters branded their changes as regulatory relief when in fact the changes they are making make our laws more confusing. Just like bad sausage, this bad bill contains a lot of fillers, including provisions dealing with driver’s license requirements, overweight hay hauling vehicles, winery special event permits and burning plastics on farms.
Perhaps gerrymandering has led Jackson to believe that the General Assembly is no longer the People’s House but a marketplace of favors to donors. In three Senate races, Jackson’s campaign has raised more than $1.3 million in contributions. Of that total, the top 10 swine-farming contributors gave more than $100,000 combined to his campaigns. Republican President Teddy Roosevelt’s critique of gilded age politicians was prescient: “Behind the ostensible government sits enthroned an invisible government owing no allegiance and acknowledging no responsibility to the people. To destroy this invisible government, to befoul the unholy alliance between corrupt business and corrupt politics is the first task of the statesmanship of today.”
Respect for law is built upon principles of representative democracy, not power politics played behind the scenes. Bills that create legal loopholes should face the scrutiny of committee hearings and public input. Lawmaking by ambush is corrupt politics, plain and simple.
Ryke Longest is a clinical professor of law at Duke University School of Law and the Nicholas School of the Environment.