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By Catherine Clabby
The number of livestock farms converting to densely populated concentrated animal feeding operations (CAFOs) has grown in recent decades. So have state laws written to shield the farms from interference by neighbors who oppose the odors and other conditions the farms can create.
The latest effort to do so in North Carolina comes as evidence has increased that CAFOs may sometimes pose health risks to people living nearby, such as respiratory problems, increased blood pressure, and increased stress. exposure to antibiotic resistant bacteria and mental health strains.
It also arrives as disgruntled CAFOs neighbors in this state, frequently black citizens in low-wealth communities, have more allies than ever, especially lawyers and environmentalists.
“It’s heating up because both sides are getting stronger,” said Elizabeth Haddix, an adjunct professor of law with the UNC Center for Civil Rights.
Battle over nuisance bill
As originally written, HB 467 would prune financial rewards available to some 500 eastern North Carolina residents who are suing a subsidiary of WH Group, the Chinese food company that absorbed Smithfield Foods in 2013.
Plaintiffs in the suits say the company knew that placing hundreds of hogs per barn at multi-barn CAFO sites tended by contract growers was likely to cause egregious odors and other nuisances but it neglected to take reasonable steps to curb nuisances and injuries they produce.
If HB 467, backed by this state’s hog and poultry industries, becomes law, neighbors could only receive payment for decreased property or rental values. In victorious cases, there would be no dollars to compensate for health effects, mental distress or limited freedom to enjoy a property.
House leadership support for trimming farms’ liability was obvious on April 6 after Speaker Tim Moore put the measure up for one of the required votes out of sequence. He gave no warning nor did he ask for comment from sponsors, as is usual. That prompted complaints by some opponents in both parties.
That vote succeeded.
On Monday, lots of comment was heard during final debate on the bill in the House. Bill co-sponsor Rep. Jimmy Dixon (R-Warsaw) said the lawsuits were an unfair assault on local farmers, even though the cases name the Smithfield hog raising subsidiary. He said that defendants were being taken advantage of by money-grubbing lawyers.
“The very people pretending to be represented are being prostituted for money,” Dixon said.
Co-sponsor Rep.Ted Davis (R-Wilmington) said he interpreted U.S. District Judge W. Earl Britt, in a decision refusing the company’s request to dismiss the lawsuits, as saying North Carolina law was not explicit on what damages were allowed in such cases.
But one opponent after another, both Democrat and Republican, argued against curbing state residents’ property rights, protections with legal roots that predate the Declaration of Independence.
“It really is not the responsibility, in my view, of this legislature to take away those property rights, one, and secondly to immerse itself in an existing lawsuit,” said Rep. Hugh Blackwell (R-Morganton). “It is encouragement for well heeled defendants or plaintiffs to decide they will bring all heavily disputed claims to the legislature.”
“Let the courts decide,” he argued.
Rep. John Blust (R-Greensboro) put forth an amendment that would exclude ongoing lawsuits if the bill becomes law. Defying leadership, Blust, Blackwell and 17 other Republicans voted for the amendment, which passed by a narrow margin.
A partner Senate bill retains language to limit the payments.
Nuisance lawsuits against CAFOs have increased nationally in the past decade or so, with plaintiffs both losing and winning. Some payments to plaintiffs have exceeded $10 million dollars.
The North Carolina General Assembly already revised state law to reduce farms’ vulnerability to some nuisance complaints in 2013, not long after neighbors to hog farms in eastern North Carolina filed a first wave of lawsuits.
The law was amended then to say that changes in ownership or size of a farm, interruption of farming for a period of no more than three years, participation in a government-sponsored agricultural program, using new technology or changing the product produced were not “fundamental changes” that could make a agricultural activities more vulnerable to nuisance claims.
Those sort of protections, which help protect farms that convert to CAFOs from lawsuits, is consistent with model legislation proposed by the conservative American Legislative Exchange Council. Such language has been adopted by many farm states, said Vanessa Zboreak, a professor at Wake Forest University School of Law who studies food law and policy.
But Zboreak said she is not aware of any changes to a state law that would limit nuisance damages available to people already engaged in lawsuits.
“This is pretty outstanding. I’ve just never seen something so transparently intended to cut off remedies to current plaintiffs,” she said.
Hot issue elsewhere
Advocacy on behalf of intensive agriculture is active in other state legislatures.
Just last month, Iowa legislators passed a measure that explicitly protects CAFOs from nuisance suits if they comply with state and federal law and use “prudent and generally utilized management practices.” It’s a trend that’s been ongoing for years.
New Mexico: Shields agricultural operations from nuisance suits based on any changed condition in or near the site if the operation was not previously deemed a nuisance. Passed 2016.
Indiana: HB 1091 guarantees a defendant’s court costs and reasonable attorney fees if nuisances suits against farms are deemed frivolous. Passed 2012.
Idaho: HB 210: After one year in operation, no agricultural operation can be deemed a nuisance due to changed conditions near the facility. Passed 2011.
Missouri: Limits damages in nuisance suits to property value losses and medical treatments. Passed 2011. Upheld by state Supreme Court in 2015.
And there are bills under consideration in other states.
The hog and poultry industries, the largest agriculture sectors in this state, and neighbors to CAFOs are carefully watching what happens to House Bill 467 and its companion bill in the Senate.
Minnesota: Bill would require mediation with farmers before some nuisance suits could be filed in court.
Oklahoma: Bans nuisance lawsuits against agricultural activities on farm or ranch land in operation for two years, even if the type or scale of farming changes.
Late last month, opponents to CAFOs effects on neighbors, including some court case plaintiffs, drove as far as two hours to Raleigh to speak against the bill during a committee meeting in a room too small to accommodate all of them. They recounted their experiences with stench, flies, even buzzards drawn by dead hog boxes when they are not properly sealed until animal remains get hauled away.
Accompanying them were North Carolina environmentalists, including riverkeepers, who have helped produce a recent map that plots hog and poultry CAFOs. Putting poultry CAFOs on a map isn’t easy; reporting the locations to state environmental regulators is not required for most.
On Monday some people who spoke against the House bill last month had returned to the General Assembly, sitting not far from North Carolina Farm Family members there to support the bill.
In addition to the survival of their lawsuits, advanced by the Salisbury law firm Wallace & Graham, they’ve had other government support of late.
In January, the civil rights division of the U.S. Environmental Protection Agency dispatched a letter of concern to the state Department of Environmental Quality citing possible discrimination against minority and poor residents near CAFOs in eastern North Carolina. The letter said the state’s permitting system for hog CAFOs may not adequately take into account how the farms negatively affect black, Latino and American Indian neighbors.
The letter was responding to a complaint filed on behalf of neighbors by the environmentalist groups Earthjustice and Waterkeepers Alliance, Inc, along with the grassroots North Carolina Environmental Justice Network and Rural Empowerment Association for Community Help.