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By Greg Barnes
Elsie Herring said she is thrilled by a federal appeals court ruling last month that rejected most of the arguments presented by Smithfield Foods in a case that has pitted the world’s largest hog producer against its mostly low-income Black neighbors.
Herring, 72, said she has been fighting how Smithfield raises its hogs since the 1990s. She said she has watched farmers spray fecal matter onto her mother’s home in Wallace to the extent that “it rained down on us just like it was raining, and the smell was like nothing I have ever experienced.”
Over the years, Herring said, she wrote letters to everyone she could think of — state and federal regulators, the governor, the attorney general, state lawmakers, the county health department. Anyone who might be able to stop the spraying, the awful smells, the flies and the potential health hazards coming from the industrial hog farm next door.
No one listened, she said.
Instead, they retaliated. One time, Herring said, the farmer next door came over waving a stick and warning her to stop making baseless complaints. Another time, she said, the farmer’s son barged into her then 98-year-old mother’s home and shook the chair she sat in. Two other times, she said, he threatened them with a gun.
Herring said that when she complained to what was then the state Department of Environment and Natural Resources, she was told she could be forced to pay for the farmer’s losses or be jailed for making baseless complaints.
Herring, a plaintiff in one of the lawsuits, said she hopes they will listen now.
She thinks the scathing Nov. 19 ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, will finally make people understand the harmful impact Smithfield Foods has had on its neighbors.
“It’s been long overdue … and is a glimmer of hope that maybe this is the road that will bring about some sustainable change that makes living in our homes enjoyable again, which is how it should be,” Herring said. “Your home is your castle.”
The three-panel appeals court rejected most of Smithfield’s arguments in the Kinlaw Farms case, the first of five nuisance lawsuits to go to trial in U.S. District Court since 2018.
In the Kinlaw case, the appeals court upheld a lower court jury’s decision that the 10 plaintiffs each be awarded $75,000 in compensatory damages, a sum that was reduced by a factor of ten under a state law that caps awards.
But the court also ruled that punitive damages awarded in the case — originally set at $5 million per plaintiff but cut in half under the same law — were unfairly weighted against Smithfield’s corporate assets and must be reconsidered.
Hours after the ruling was announced, Smithfield released a statement saying it had reached a settlement that would resolve the nuisance cases against the company.
Smithfield would not divulge financial or other terms of the settlement. But it appears that it will extend monetary awards to the 10 plaintiffs in the Kinlaw Farms case, as well as the more than 500 North Carolina residents named in other lawsuits against the company.
Whether the settlement translates into hog farms becoming kinder, more thoughtful neighbors remains to be seen.
Previously, lawyers for Smithfield had argued that the nuisance lawsuits pose “a dire threat to hog farming” in North Carolina and “an existential threat to the livelihoods of farmers and the food security of our nation.”
Sherri White-Williamson, environmental policy director for the North Carolina Conservation Network, grew up in Sampson County, the heart of hog country. More than 40 percent of North Carolina’s hog farms are in Sampson, Duplin and Bladen counties in eastern North Carolina.
White-Williamson said she left her Sampson County home before Smithfield built the world’s largest hog slaughterhouse in Bladen County in the early 1990s. When she returned to stay about two years ago, White-Williamson said, she was confronted by a proliferation of industrial hog farms and the problems that her neighbors have complained about for years.
White-Williamson thinks the appeals court ruling may eventually help Smithfield’s neighbors, but she doesn’t expect anything to happen soon.
“I think in some ways that that may be a challenge, quite frankly, because the spray field and lagoon system is so ingrained right now that unless Smithfield is willing to take a different route or role, that it would be awhile before there could be major changes that would actually be helpful to the communities that live around these facilities,” she said. “I think that’s just the reality.
“I would be hopeful that perhaps with this decision, that it might accelerate things that Smithfield might be able to do to reduce some of the exposure and disruption in the communities of color and low-income communities that are exposed to all of the stuff that they are exposed to from the presence of these industrial hog farms.”
“The next step is to restore the same exact rights to people who are suffering the same exact plight, because of the same exact company’s use of the same exact system elsewhere,” Hendrick said.
Murphy-Brown, the company named in the lawsuits, supplies hogs to farmers for Smithfield and oversees farming operations. Smithfield has been owned by a Chinese company, the WH Group, since 2013.
Ryke Longest, director of the Environmental Law and Policy Clinic at Duke Law School, has also been working on issues involving hog farms for years.
“I certainly think this can be an opportunity to turn around the Company’s willingness to do more to protect the environment and the neighbors,” Longest said in an email.
But Longest has his doubts.
“Thus far, their strategy appears to rely on political favoritism by key legislators like (state Rep.) Jimmy Dixon (R-Duplin) and effective public relations firm work such as the NC Farm Families PR campaign,” Longest said in an email. “They had excellent legal counsel at trial and on appeal and a conservative panel of judges. But they still lost big at the Fourth Circuit in a way that no team of spin doctors, image polishers, and political apologists can repair.”
Longest’s lack of confidence in Smithfield spills over to the company’s vague statement about its settlement. Longest questions whether a settlement has even been reached. Hendrick and White-Williamson said they had heard only rumors about the settlement.
“Announcing that a confidential settlement has been reached and simultaneously downplaying the magnitude of Smithfield’s overwhelming loss at the Fourth Circuit is strategic,” Longest said. “This announcement appears aimed at getting the media and markets to move on past this story without actually reading the opinion itself.”
Longest referred to the concurring opinion by appeals court Justice J. Harvie Wilkinson. Reading that opinion, he said, “is the last thing that Smithfield’s public relations professionals will want people to do.”
“Judge Wilkinson was an appointee of Ronald Reagan and his name had been floated for the Supreme Court in times past,” Longest said. “His portion of the opinion demolished key arguments made by the Pork Council, Farm Bureau, and Smithfield Foods itself.”
Smithfield did not respond to a request for comment on how the appeals court ruling could benefit the neighbors of hog farms.
Most hog farmers in North Carolina raise animals under contract with Smithfield Foods. Through Murphy-Brown, the hundreds of farmers under those contracts all follow company rules for the proper handling and care of the hogs and the farms. Almost all of the farms operate in much the same way, as efficiently as possible.
The farmers flush waste from their barns into giant holding ponds called lagoons. The waste is then sprayed onto the farmers’ fields to keep the lagoons from filling. Exhaust fans on the walls of the barns are operated at different times throughout the day to keep gases from accumulating.
The result, according to the farms’ neighbors, is stench and insects and decay from dead hogs that are piled into open containers before they are removed. Neighbors complain of fecal matter entering their homes from the spraying and trucks that rumble past their homes at all hours of the day and night. At times, they say, the stench is so bad they cannot leave their homes.
The neighbors also worry about their health. Research by the late Steven Wing, a professor of epidemiology at the University of North Carolina’s Gillings School of Global Public Health, found a correlation between air pollution from hog farms and higher rates of nausea, increased blood pressure, respiratory issues and childhood asthma symptoms for people living nearby.
The justice’s opinion
Kinlaw Farms sits at the end of a dirt road in the White Oak community of Bladen County. The road is dotted with small, wood-framed houses and trailers. According to the appeals court ruling, “Kinlaw trucks created noise and dust ceaselessly.”
In a blistering concurring opinion, Justice Wilkinson agreed that the lower court should revisit the punitive damage awards, and he acknowledged the critical economic importance of the hog industry in North Carolina.
But Wilkinson also wrote that “It is past time to acknowledge the full harms that the unreformed practices of hog farming are inflicting.”
“I fully recognize the essential contributions of the pork industry in general, and of North Carolina’s hog farms in particular,” Wilkinson wrote. “I am also not so naive as to imagine that hog farming could ever be an antiseptic enterprise. But the record here reveals outrageous conditions at Kinlaw Farms—conditions that, when their effects inevitably spread to neighboring households, violated homeowners’ rights to the healthful enjoyment of their property.”
Wilkinson wrote that a truck delivery schedule for Kinlaw Farms showed 11 deliveries between 12:30 a.m and 5:30 a.m. during a single morning.
Wilkinson also wrote about the issues with hog confinement, lagoons and spray fields. Kinlaw Farms raised nearly 15,000 hogs at a time. Murphy-Brown stopped supplying hogs to the farm after the lawsuit was filed. According to the court’s ruling, Murphy-Brown had sited and designed the farm and routinely visited the property for inspections. The farm’s owner, Billy Kinlaw, has said in the past that his farm was among the best run in the state.
“At the risk of replaying this theme ad nauseum, it should be observed that these interlocking dysfunctions were characteristic not just of close confinement but of the lagoon-and-sprayfield system as well,” Wilkinson wrote. “The negative effects on animals, workers, and homeowners are here all visible in a single glance.”
Wilkinson also wrote that waste in the Kinlaw Farms’ lagoons almost certainly contained “pathogenic microorganisms and bacteria.”
“When this waste material is sprayed into the air, everything around, including nearby homes, is at the mercy of the prevailing winds,” he wrote. “While the odor potential from spraying untreated hog waste high into the air—where it then drifts toward nearby homes—is self-evident, Murphy-Brown also knew of odor complaints from neighbors of hog farms with setups similar to Kinlaw.”
Wilkinson pointed to studies showing that leakage from hog lagoons contributes to ground and surface water contamination, and that many of North Carolina’s lagoons lie in floodplains that make them subject to spills.
“At the end of all this wreckage lies an uncomfortable truth: these nuisance conditions were unlikely to have persisted for long—or even to have arisen at all—had the neighbors of Kinlaw Farms been wealthier or more politically powerful,” Wilkinson wrote, describing how a moratorium on new lagoon and spray fields arose after hog farms threatened to expand into wealthy and tourist-dependent Moore County. The county is home to Pinehurst and other nationally recognized golf courses.
“It is well-established — almost to the point of judicial notice — that environmental harms are visited disproportionately upon the dispossessed—here on minority populations and poor communities,” he wrote.
In the minority opinion, Justice Steven Agee said evidence presented about Smithfield’s assets posed an improper risk not only to punitive damages but to compensatory damages.
“The prejudice from this error is so profound that a full new trial is necessary,” wrote Agee, who also objected to the district court decision to allow expert testimony from a defense witness but not one from Smithfield.
The hope ahead
Elsie Herring’s great-grandfather was a freed slave who bought a sliver of farmland in the Duplin County town of Wallace in 1891. Over the years, she said, her ancestors added on so that the property now comprises about 60 acres.
Herring moved to New York at an early age to work in banking but returned home in 1993 to be with her elderly and sick mother, who died at age 99. When Herring returned, she found an industrial hog farm next door and all of the problems that she said came with it.
But no one listened to her complaints, she said, because that is how it has always been.
“Historically,” she said, “this is just the way our system has incorporated people of color into the scheme of things, the policymaking and decision-making. We’re left out. Totally.”
Herring says she can only hope that the appeals court ruling will help the neighbors of hog farms.
“I’m really very thrilled about the verdict,” she said. “I think it’s important that industry understand that they have to be held accountable for their bad behavior. They destroyed the quality of our lives. This has been going on for the last 30 years or so now.
“So this is our time.”