By Catherine Clabby
North Carolina legislators once again have moved to reduce this state’s pork industry exposure to nuisance lawsuits.
House members on Thursday approved the NC Farm Act of 2018, which includes provisions that would tightly restrict when neighboring property owners can file nuisance lawsuits against farms producing odors or other noxious conditions.
The bill passed in the Senate late Thursday without debate, despite claims by opponents on both sides of the aisle in recent days that it improperly weakened the property rights of state residents.
“I read this provision to actually be protective of private property rights not to harm private rights,” Rep. Kelly Hastings (R-Cherryville) said Thursday, expressing support before the 65-42 affirmative House vote.
Led by Rep. Jimmy Dixon (R-Warsaw) and Sen. Brent Jackson, (R-Autryville), supporters said more limits on the nuisance suits are imperative after hog farm neighbors in Bladen County in April won the first of 26 nuisance cases pending against Murphy-Brown LLC, the hog-farming division of Smithfield Foods.
Those cases allege that Smithfield, now owned by WH Group of China, has not invested in waste management upgrades on more than 1,000 farms that raise its hogs in Eastern North Carolina. That’s despite neighbors’ decades-long complaints about odors and other impacts from their open-lagoon and field-spraying systems.
No one was more passionate in opposition Thursday than Rep. John Blust, (R-Greensboro). A lawyer who is retiring from the General Assembly this year, Blust spoke at length, urging fellow legislators to take more time to assess whether the measure was necessary and fair.
“We’re taking a side in a dispute, saying we, we in the legislature … know better than the court. We know better than the facts. We know better than the law,” Blust said. “We’re going to protect one litigant, and we’re going to say to the other: ‘You don’t matter. You don’t count.’”
“It’s because the one side has the ear of the powers that run this institution,” he added.
House speaker Tim Moore (R-Kings Mountain) fired back, noting that all legislative rules were followed in the hearing of the bill, which was heard in Senate and House committees before votes in each chamber.
Vigorously supported by Agriculture Commissioner Steve Troxler, the nuisance limits in the bill build on a law passed last year that strictly capped payments in such lawsuits. The new measure would prohibit a plaintiff from obtaining punitive damages in court unless a farm was implicated in criminal convictions or government enforcement actions.
In addition, only people living within half a mile of a farm can file such lawsuits. And they must act within a year of a farming operation starting or undergoing a “fundamental” change.
Existing state right-to-farm law says changes in ownership, size or what’s produced on a farm do not qualify as fundamental changes.
Thursday’s vote came as a second hog-farm nuisance trial is underway just a few blocks away from the General Assembly in Raleigh. Among witnesses questioned in U.S. District Court under oath there this week was Gregg Schmidt, Smithfield’s hog product division president.
In a May letter from Schmidt to North Carolina growers that Smithfield hires to raise its hogs, the executive described the successful lawsuit as a massive threat, according to a federal court filing.
“[T]his verdict poses a dire threat to our company, our growers, the pork industry and all agriculture. In fact, it is a threat to rural North Carolina. And it is a threat to the entire economy of North Carolina,” Schmidt wrote.
But one lawyer for the plaintiffs in the nuisance cases questioned the constitutionality of the nuisance language in the farm bill, which explicitly states it won’t affect existing lawsuits.
Lawyer John Hughes from the Wallace & Graham law firm in Salisbury said he found particularly troubling the requirement that nuisance cases be filed within one year after a perceived nuisance emerges.
“[T]he “one-year” language in the bill is nothing less than a ‘get out of jail free’ card for Big Pork,” Hughes said, noting that all “industrialized hog operations in the state were built by 1997.”
During debate in the House of Representatives late Wednesday evening, lawmakers greenlighted an amendment to the bill which allows for the sale of raw milk to people who have purchased a share of a milk-producing animal such as a goat or a cow.
Next legislators send the bill to Democratic Gov. Roy Cooper. He can sign it, veto it, or take no action at all, which would result in it becoming law.
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Because of problems hog lagoon dam failures during Hurricane Fran and floyd, no new hog farms were allowed in North Carolina. Since Hurricane Fran and Floyd the farms are now allow to pump lagoons down before large storms to prevent a break in the surrounding ground that would create a flow of waste. But it only saves the farmer having to repair the dam, it does nothing for the environment. The waste run off extends to nearby properties and streams.
The entire process was to give farms time to install proven technology to reduce hog waste odor from the lagoons, but money is not being spent to address those concerns. When the owner of a farm is interviewed don’t you wonder why they don’t live near the hog operation, many times they have another address. The one near me the owner lives at least 20 miles away from the farm. What other products are produced on the so call farm, no corn, tobacco, soybeans or crops, just a shed full of hogs with a stench that extends a mile on most days. The operation is a production facility, they produce a product which is hogs, that is the only things they receive their income from on the farm. Yet we have two sets of rules one for the hog farms and those who produce other products like cars. The impact for protecting the environment is very tightly regulated for a product like a car manufacture and very lose for the hog operation. It is surprising that a home owner can not pump out his septic system and spray it on a grass covered yard, but a farmer can store millions of gallons of hog waste in a lagoon and spay it on a field. … I lived on a farm when a farmer lived on the farm raised many crops and care more about the environment, their drinking water came from wells on the farm, so pollution of any kind was not tolerated.
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