Last month, a federal judge ordered Smithfield Foods subsidiary Murphy-Brown to pay $3.25 million in damages following a nuisance suit regarding its use of open cesspools in hog waste disposal. This verdict was itself something of a break for Smithfield, a multibillion-dollar Chinese conglomerate. The jury had originally awarded the ten plaintiffs in this case, the first of twenty-six lawsuits scheduled to go to trial, more than $50 million, a devastating verdict.
The $3.25 million judgment—reduced because of the state’s punitive-damages cap—was much more manageable. Nonetheless, with the second trial currently underway, the industry’s allies in the General Assembly are trying to ensure it doesn’t happen again.
On Wednesday, the state Senate’s Agriculture Committee voted in favor of new provisions in the state’s Farm Bill that would tighten restrictions for nuisance suits against agriculture operations in the state, including hog farms. The vote was cast in a crowded room from which reporters and observers were turned away, and an audio stream for those unable to attend was not provided.
Bill sponsor Senator Brent Jackson, a Republican agribusiness executive whose farm has previously been cited by the U.S. Department of Labor for violating minimum wage and other regulations, said that these provisions clarified state law and would shield farmers acting in good faith from “unnecessary litigation.” The Senate approved the Farm Bill’s second reading today on a 32–13 vote; it needs one more vote in the Senate before going to the House.
Under Jackson’s SB 711, an agricultural operation cannot legally be considered a nuisance unless it is proven not to operate in a manner “substantially consistent with practices, methods, or procedures that are generally accepted and routinely utilized by other agricultural and forestry operations in
[sic].” In other words, if most hog farmers are spraying liquefied hog feces onto their neighbors’ properties, then those neighbors can’t legally complain about it even if it infringes on their health and quality of life—which, as the INDY reported extensively in its investigative series Hogwashed last year, it does.
Under SB 711, a property owner would also be prohibited from filing a nuisance suit in the event of “changed condition,” such as a change in ownership.
Opponents such as Senator Floyd McKissick, a Durham Democrat, called the provisions “unwarranted and unnecessary.”
“You don’t preclude somebody from making their case by writing a special carve-out intended to specifically address these types of nuisances and no other nuisance in the state of North Carolina,” he told the committee. “Let judges—good judges—make independent decisions based upon the evidence come before them,” he continued.
He found a seemingly unlikely ally in Paul Stam, a retired Republican representative from Apex, who said the provisions posed a “serious and direct threat to the private property rights of citizens throughout the state. The right to be free of this type of nuisance goes back several hundred years,” he said.
Michelle Nowlin of Duke’s Environmental Law and Policy Clinic agreed.
“This statute would rob neighboring residents and property owners of a fundamental right to seek redress for nuisance conditions,” she told the committee, “amounting to a legislatively sanctioned taking of private property to benefit private industry.”
Both took issue with the bill’s protection of outdated methods of hog waste disposal, such as the use of “anaerobic lagoons.”
“By enshrining lagoons and spray fields as the preferred method and offering them this legal protection, it creates a disincentive to innovate by limiting protection to practices that are most common in the region, no matter how sorry, no matter how polluting those practices might be,” Nowlin said.
The proposed bill does not specifically define what a “region” is, nor does it define what is meant by “substantially consistent compliance.” It also shifts the burden of evidence in a nuisance suit from “a preponderance of evidence” to “clear and convincing evidence,” a significantly higher legal standard.
Senator Jeff Jackson, a Democrat from Charlotte, further criticized the bill for not including language to ensure that it would not be applied to ongoing litigation. It’s unclear whether the bill would, in fact, apply to the twenty-four pending lawsuits that have not yet gone before a jury; Brent Jackson said it was his intent that it would not, but the Republicans on the committee withdrew an amendment to make that clear when Jeff Jackson said he wouldn’t support the bill even if it was included.
Last year, Big Pork’s benefactors in the legislature, led by state Representative Jimmy Dixon of Duplin County, tried a similar approach, severely limiting the amount of money plaintiffs in nuisance lawsuits against agriculture operations could receive. Originally, Dixon’s bill made that provision retroactive, meaning it would effectively negate the lawsuits against Murphy-Brown, which, along with others in the pork industry, had given Dixon’s political campaigns $115,000 over his career. That provision was later removed; the bill, HB 467, passed the legislature and was vetoed by Governor Cooper, who then saw his veto overridden.