Nuisance Lawsuits are Taking a Bite Out of Big Pork

One of North Carolina's many CAFOs.

Nuisance Lawsuits are Taking a Bite Out of Big Pork

Published 3 months ago




In 1611, William Aldred took his neighbor to court.

Thomas Benton was being sued for “erecting a hogstye so near the house of the plaintiff that the air thereof was corrupted.” In common language, the pigs stank, making it impossible for Aldred to enjoy his home which, in his words, had become “unbearable to live in.” The courts sided with Aldred, saying the odor was “depriving him of his dignity” and therefore, a violation of his rights.


In a dispute as old as time pig farmers and neighboring landowners have never seen nose-to-nose. Hog farms are notorious for having noxious odors and flies, especially when there are too many animals for the property size or waste management techniques are improperly employed.


Anyone that has ever stepped foot on a farm knows that farms often have noisy machinery, animals produce large quantities of manure, and can produce large clouds of dust when working the land. Farmwork is hard, dirty work, and depending on the season and the weather, begins while most non-farmers are still asleep in their beds, and continues long into the night. As rural lands are being purchased and developed into residential areas, more and more existing farmers are running into problems with their neighbors.


In the past few months, there have been three landmark cases that pork-producing giant SmithField Foods and subsidiary Murphy-Brown have lost. The most recent of these verdicts was delivered earlier this month when six neighbors of a North Carolina hog farm were awarded $473.5 million. With 23 more lawsuits and 488 more plaintiffs to go, more and more large-scale farmers and CAFO operators are increasingly worrying if it is just a matter of time when they will have their day in court, too.


The limited media coverage of the three cases has been limited to showcasing the woes of the plaintiffs, and making the farmers out to be the villains of the story. However, researching this article proved there was a lot more to this story than a three minute blurb on the local nightly news can tell. By looking closely at both sides of the case as well as the current political and legal climate in the state of North Carolina, only then can conclusions regarding the future ramifications of these verdicts can be made.


A Little Background on the Subject

Because we need farmers to produce the food we eat, in the past there have been protections for farmers against what are called nuisance lawsuits. These suits are brought against farmers when someone else, usually a neighbor, is objecting to some part of the farming process and how that process affects them. Noise complaints, dust issues, odors and flies are just some of the unfortunate byproducts of farming that simply are part of the process and often simply cannot be helped.


That’s why between 1978 and 1983, almost all 50 states enacted their own Right-to-Farm (RTF) statutes. These statutes, in most states are simple, broad guidelines, with the expressed purpose to discourage nuisance suits. 


 For example, most RTFs state such things as a time limit in which possible suits may be brought and under what circumstances. If a person moves next door to an existing farm, and after a few months, determines they can’t stand the smell of chickens then they are unable to bring a suit. The farm was there before they moved there, and the law reasoned the plaintiff should have done more due diligence before purchasing the property next to a working farm. However, if the farm sets up operation next door to a neighborhood that was already there, then there is a certain time limit where the residents may bring a case should a nuisance claim arise.


Around the time when RTFs were being drafted, factory farming and Confined Animal Feeding Operations (CAFOs) were just coming into regular operation. These are hardly in the same league as Mr. Benton’s pigstye, or even the stereotypical large family farms seen up until the mid 1960s. CAFOs usually house hundreds or thousands of livestock within a confined area to be raised to a certain size, and then are shipped out for slaughter.


Due to the world’s consistent population growth, farms have had to adopt large scale practices, like utilizing CAFOs, in order to meet the demands of an ever-growing hungry public. Larger farms mean more animals and a lot more animal waste, which, even when properly managed, can cause odors, flies and other pests. When you have improperly managed large amounts of feces and urine that create a nuisance for those who live in close proximity, illness, disease and contamination of ground and water supplies are not only possible, but likely.


The recent court cases are being brought against CAFOs that have been in existence and expanded upon since their inception in the early 1980s. To better understand both sides of this lawsuit, it’s time to look objectively at each side of the argument.


Smithfield Foods and Murphy Brown

Smithfield Foods is one of the top 4 pork production companies that are responsible for over 70% of the current U.S. pork production. The Smithfield Packing Company went into operation in 1936, and quickly became a large producer in the industry. In the early 1980s, CEO Joseph Leuter III started to buy out his competitors, and between 1981 and 2008, he incorporated 40 more companies under the Smithfield name. In 1992, they opened a 973,000 square foot processing facility in Tar Heel, North Carolina, the largest plant in history, with capability of processing 32,000 pigs per day.


At the same time Leuter began buying out the competition, Smithfield Foods began their quest for total vertical integration farming into their plan. Vertical integration farming happens when a single company owns every part of the farming process from livestock breeding facilities and nurseries through the slaughterhouse and packaging and distribution of the end product.


To make VIF work, Smithfield also utilizes a large number of contract farmers who agree to raise the hogs to certain specifications before shipping them either to another farm or for processing. Many of these farmers were formerly tobacco growers, and as demand dwindled for tobacco products, they found themselves out of work. Contract farming allowed the farmers to again do business and earn an income with their properties without the large initial cash expenditure of buying the livestock. The farmer owns the farm and is paid a specific amount for their efforts, but otherwise is wholly dependent on Smithfield for continuing their contract, as they have no hogs of their own and are not set up for anything other than pig farm production.


Smithfield was not interested in any contract farms that couldn’t handle vast quantities of pigs, so the contracts were awarded only to farms that could raise hundreds or thousands of pigs. It didn’t take long for the small farmers to go bankrupt, as they could no longer compete against the corporate-backed giant farms.


Murphy-Brown is one of Smithfield Food’s many subsidiaries, and they are the defendant named in the suits. In 2013, Smithfield Foods was bought by Shuanghui International for $7.1 billion, the largest purchase of an American company ever. That means that one out of every four U.S. pigs is currently owned by a foreign corporation.Since then, Shuanghui International has been renamed the WH Group, and is publicly traded on the Hong Kong Stock Exchange.


When Shuanghui International decided to purchase Smithfield, red flags went up everywhere. Senate hearings were held before the transaction could be completed as this was widely viewed as a foreign takeover.


Why would a Chinese company be interested in purchasing the very American Smithfield brand? It’s simple. As the Chinese population continues to grow at a staggering rate, food is becoming a scarce commodity. The Chinese government realizes they are not capable to grow all the food they need and will need to import food from other countries to meet even the basic needs of their people. In addition, the middle class is a fast growing demographic that has adopted a more Western-style diet. Pork is the #1 meat consumed throughout China, and it is in demand like never before.


Up until recently, most of China lived in poverty. A typical peasant diet was based on things like rice, maize and noodles – all items that could be cheaply and easily grown within their country. However, raising animals for meat is exponentially more expensive and requires a great deal more land. Additionally, now food has to be grown to feed the animals as well as the people. As much of China is not arable land suited for either growing grains or raising animals, this poses an additional problem.


China is roughly the same size as the U.S., except with three times the population. After past instances where millions of people in China starved to death due to poor governmental planning, the government has become increasingly proactive in making sure that periods of mass starvation will never happen again. Government-led current efforts to prevent food shortage are in light of reports by the U.N. and other sources that by 2050, we will be in a worldwide food security crisis.


Also, according to Usha Haley, a business professor at West Virginia University, China wrote in their 2011 government-sanctioned business plan that they wanted to advance themselves as a country in the critically needed areas of meat production and processing. Acquiring Smithfield was a huge piece of their plan to be able to feed their people using the most modern technology available. Not only did China gain ownership of the products, but of the advanced technology they could now bring home and implement for themselves. Included in this is the laboratory where Smithfield was able to genetically engineer pigs to be leaner and more profitable.


Additionally, Haley also mentions that pig farming is probably one of the most polluting agricultural activities, especially as it exists with the pig-excrement filled anaerobic lagoons. By keeping the CAFOs in the U.S., China is reaping all of the benefits of this acquisition, yet leaving all of the excrement for the Americans to deal with.


Speaking of excrement, just like in Aldred’s case, that’s really the reason these lawsuits are quickly becoming the environmental issue of the decade. The farms owned by Murphy-Brown, the subsidiary of Smithfield Foods that is named in the suit, are actually CAFOs. These are large barns filled with several thousand hogs that all relieve themselves onto slatted floors that allow their waste to fall through. This waste is then flushed into large “lagoons” that were erected in the 1980s and 90s and each one is roughly the size of two football fields. Here, the feces sit until the lagoons get too full, and then the excrement is sprayed over fields as a form of fertilizer where crops used in the feeding of the pigs is grown.


Back when the lagoons were first built it was with the permission and blessing of the specific states in which the farms are situated. This new technology was heralded as the next great wave in large scale pork production. The lagoons were built to specification and completely legal, so the farmers were not doing anything wrong at the time they were built, nor are they doing anything illegal now. In fact, unless you lived near one of these, few people knew of their existence.


However, the lagoons were brought to the public eye after one of these ruptured in 1995 spilling 25 million gallons of watery putrid waste into the New River, killing thousands of fish and flooding other nearby farms. Some modest reforms in laws regarding the North Carolina CAFO hog farms were brought about at that time, and in 1997, a temporary ban was placed on the erection of new waste lagoons. In 2007, that ban became permanent, so no new lagoons have been built since 1996.

In 1999, torrential rains caused by Hurricane Floyd overflowed the lagoons onto already storm-saturated fields and seeped into groundwater and nearby drinking wells. At that time two of Murphy’s lagoons ruptured from the increased water pressure, and many more overflowed from flooding.


In theory, there were some safeguards set up to help protect the locals, such as the state requiring all lagoons to have a sample sent out for analysis before spraying neighboring fields. However, even that safeguard was eventually easily corrupted. There are currently 28 felony counts being brought against Billy Houston, an independent contractor charged with falsifying lagoon sampling records for over 30 farms.


Although the idea of lagoons of pig waste seemed like the way to deal with the ever-growing problem of pig waste in the 1980s and 90s, the public has become increasingly more aware of their flaws over the years. With all of the advances in technology, and the obvious deep pockets of the W.H. Group (which many experts believe is really a Chinese government-controlled entity), why can’t new technology be created and implemented to decrease the environmental devastation caused by the pig waste lagoons?


The thing is, there is new technology available and already being successfully used in some places. OptimaBio, a pig waste-to-energy company, has developed a plan to turn pig feces into energy sources like natural gas and electricity. In a very simplified explanation, covering the lagoons with large tarps and installing pumps to circulate the waste enables the capture of the toxic methane gas fumes which are then cleaned and converted into usable, environmentally-safe biogas and electricity. The Optima KV project has the ability to create enough renewable gas power to fuel 1,000 homes per year. A 2013 study by Duke University probed that swine biogas can be as inexpensive as solar power, and run at 5 cents per kilowatt hour.


In an article published by NPR on April 17, 2018, Marvin Cavanaugh, an engineer hired by Duke to develop the pilot project, mentioned they have even had teams from China come to see the technology used. When he asked them why they were interested, they said they wanted to bottle the methane gas and convert it to use as automobile fuel. They pointed out that although that may not be a cost-effective use here is the U.S., in China, where gasoline is exponentially more expensive, this was certainly doable.


Another plan, created by Tim and Wendy Craig, uses a belt system to remove solid wastes from liquid and to use the solids much like traditional composting, and the gases produced would be used much like in the Optima KV project. Liquid wastes would be processed separately for additional refinement to eventually become a form of liquid nitrogen crop fertilization.


Increased costs in corn and diminishing pork pricing are the reasons given why more hasn’t been done to promote these groundbreaking breakthroughs in the pig farming industry. As corn is increasingly devoted to ethanol production, feed prices have been driven through the roof due to the shifts in demand. Additionally, after bad press regarding the use of gestational crates for sows became mainstream news, Murphy-Brown has slowly started to make changes from crates to group pens for pregnant sows. There are some of the reasons Murphy-Brown has cited for not doing more to research alternatives to the current situation, as their cash is currently ties up in these areas.


The Neighbors

The residents of the counties where Big Pork resides have had enough.


For decades, neighbors of the over 4,000 giant waste lagoons in North Carolina have had to deal with the eye-watering stench of the feces, the flies and other pests drawn by the sun-baked waste, and the swarms of buzzards drawn to improperly disposed carcasses of decaying hogs. When you add in the days of high wind when the waste sprayers are in use, and the entire exterior of your house is splattered with fecal matter, you wonder what took them so long to bring suit against the farms that make their daily lives a living Hell.


This is the slant probably 99% of the media takes on this story, and it’s easy to understand why. Most of the residents neighboring the large farms and acres of waste lagoons are low-income minority families that do not have the financial resources or the opportunity to move away. Many have become resigned to the fact that things were not going to change, so they tried to live their lives around it.


Birthday parties and other indoor events are always held indoors. You don’t even think about putting your wash out on the line to dry, and you eventually get used to the smell on most days. You have to admit, this paints an incredibly sympathetic picture that makes you feel terribly that they have to live like in a place where they cannot enjoy their own homes due to the neighboring farms malodorous presence in the community.


The residents of these counties are quick to point out that some farms are much worst to live near than others. Depending on the farm, some residents have complained of piles of dead hogs left to rot in the humid swelter that is summer is North Carolina. Buzzards, flies and other pests are drawn to the stench and filth of CAFOs that are improperly cleaned. Complaints of nausea, headache and itchy and burning eyes are frequently the result of spending any time outdoors.


The question many are asking is after suffering with this for over 30 years, why are the residents just doing something about this now? Simply, the residents just can’t take it anymore.


In a state where residents are outnumbered by pigs 38-1, the low-income, often minority population in these rural counties has realized that no help is coming after decades of complaints to a wide number of individuals, organizations and to Smithfield executives, as well.


Smithfield did say they earmarked $17 million in 2000 towards alternative solutions to the lagoon issues, but that so far, there have found no feasible alternatives better than their current solution. Many residents argue that the Department of Environmental Quality is not doing its job, as only 76 violations have been levied in the past five years.


In an interview with Rolling Stone Magazine published in 2006, Leuter, the CEO of Smithfield Foods was not even remotely concerned when cited for violations of the Clean Water Act. By his calculations, the company “theoretically could have been charged with 2.5 million, by his calculation” so 74 violations were only “a very, very small percent.”


It can be argued that the residents are only interested in a payout, as at no point have any of them asked for the situations to be remedied through injunction – they are all seeking damages in the form of monetary compensation. Is this an opportunity for the locals to get rich quick? There are many who are thinking that, as well. Many of the plaintiffs and neighbors are quick to point out that only by hitting the big corporations in the wallet will they eventually see any possibility of change for the future.


Lastly, many who are closely watching the cases unfold have their concerns about the “real motives” of the attorneys who are representing the residents. Twenty-six separate cases, all presented by the same attorneys, with three won so far, have had net verdicts of $51M, $25M, and the most recent at $473.5M. There are some who argue the attorneys are the ones pushing residents into the suits and using recruiting-style methods to get residents to sign on and bring suits against Murphy-Brown.


However, state legislature got the last say on these verdicts by overriding Democratic Governor Roy Cooper’s veto and implementing strict caps on the verdicts of the hog farm nuisance trials. Cooper was against the cap on damages, as he stated “agriculture is vital to North Carolina’s economy,” as are also “property rights” which “are vital to people’s homes and other businesses” as reported by Newsobserver.com.


Republican lawmaker Sen. Brent Jackson, stated in the same publication he was “glad we had bipartisan support in both chambers as we stand up for our farmers.” What is now The North Carolina Farm Act also sets parameters for when and for what reasons future nuisance suits can be brought in the future. It’s easy to see why the state legislature is siding with Big Pork on this issue. After all, $85 billion of the state economy comes from agricultural pursuits including the estimated 9 million hogs on over 2,300 farms state-wide. Should relationships between WH Group and its subsidiaries fail and they take their business elsewhere, their pull out of the area would be a disastrous blow to the overall economy of North Carolina.


The NC Farm Act is unjust and unnecessary, and it places the financial priorities of a global polluter over community members impacted by the pests, odors and other hazards of industrial agriculture practices," Jamie Cole, policy advocate at the NC Conservation Network, was quoted in the same Newsobserver.com article.


The Verdicts

A good trial lawyer knows that David and Goliath type stories are popular with the jurors, and the plaintiffs vs. Murphy-Brown is no exception. Even though Aristotle said, “the law is reason, free from passion” the issues covered in this case can hardly presented without emotion. Even though Murphy-Brown’s lawyer said in closing statements that the jury needed to look just at the facts, as a human being, is that really possible?


With three verdicts in, Murphy-Brown has some decisions to make about how they are going to go forward with the remaining cases. The juries have spoken, and now, a legal precedence has been set. Unless some new evidence comes up in these remaining suits, it appears that Murphy-Brown will continue to lose. Public opinion has turned against them after hearing the stories about how these CAFOs are raising the pigs in deplorable conditions, creating serious environmental deficits in air, water and soil quality, and have turned a deaf ear to the complaints of a suffering community.


These verdicts in favor of the plaintiffs bring us back to Aldred and his neighbor. The courts are saying that farmers do have an obligation to not ruin another person’s ability to enjoy their property, just as they did centuries ago. The farming community is worried now. What will this mean for the future of nuisance lawsuits? Many farmers are rightfully concerned that they will be the next ones to find themselves in court. It can easily be argued that after the delivery of these verdicts, CAFOs now can be targeted easier than ever.


With rural farmlands continually being sold to developers, farmers are going to have more neighbors. Will a neighbor be able to bring a successful suit against a small farmer who has a rooster that creates a noise nuisance at 5:30 am? What about the local farmer who has to spray his crops periodically to prevent pests and the ruin of his yield but irritates his organic-produce-loving-vegan neighbor? Now that the RTF statutes no longer seem to hold water, will the courts fill up with nuisance suits?


We are going to have to wait and see, but many do not think this is not going to create problems for the average farmer. Remember, these suits against Murphy-Brown have come after decades of them refusing to address the significant concerns of a community. There most certainly is a difference between an internationally-based corporate-backed CAFO and Farmer Brown and his well-run family cattle farm on 500 acres.


Fingers are also being pointed at the public for becoming increasingly unaware of where their food comes from. The fact that, at some point, the meat on your dinner plate was once a living, breathing, eating and pooping creature that was raised by people on a farm somewhere is not taught or respected anymore. Many people live their lives never setting foot on a farm to see what it takes for a farmer to raise the cows, chickens and pigs. The argument has been raised that if the general public were better educated on how their food is bred, raised and eventually processed, there would be more respect and allowances made for the work farmers do, and less complaints about the odors and flies.


Regardless of where, as a reader, you lie in the spectrum of the debate, you may fall on either side of this story, or hopefully, after reading this, you are seeing both sides more clearly.


Yet there is one more part of this story that is continually overlooked, and that is, what does the future hold for the contract farmers currently employed by Murphy-Brown and Smithfield Foods?


Many of these contract farmers, who have made extensive modifications to their farms through the years to meet their employer’s specific standards, are not equipped to do anything but be a contracted pig farmer to a multi-national business empire. If the hogs are removed, these farmers will be bankrupted overnight, as well as take a large chunk of future income and jobs out of the state’s current prospering economy.


When all is said and done, the contract farmers very well might be the biggest losers in the end if Smithfield gets fed up with this entire situation and moves its operations out of state. In an article published by the Wall Street Journal in May, Chief Executive, Ken Sullivan, said that if the lawsuits succeed, “we will have to revisit whether we can continue doing business in North Carolina.”


Some people have interpreted that statement to be a warning, where others feel strongly it was meant to be a threat.


John Classen, an expert in environmental waste said it best an article printed in The Guardian on May 2018. “Ultimately, I think Smithfield can do better and producers can do better but society has to bear responsibility. We keep electing people who say they will reduce taxes to almost nothing and reduce regulations on businesses. We are getting what we ask for.”

- By Maria Dampman

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Maria Dampman Purcellville, VA
3 months ago
https://agfuse.com/article/nuisance-lawsuits-are-taking-a-bite-out-of-big-pork
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Maria Dampman
Maria Dampman

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