Op Ed: NC Lawmakers on Wrong Side of Hog Farm Nuisance Lawsuits

The News & Observer (Raleigh, NC)

June 28, 20018

BY RYKE LONGEST
Guest column

On June 15, the N.C. General Assembly passed legislation to cut off rural community members from their rights, protected by the common law since before North Carolina was a state.

Influential lobbyists and campaign donations by Smithfield Food’s political action committee supported Rep. Jimmy Dixon and Sen. Brent Jackson when they amended an omnibus bill that would ban these citizens from filing nuisance suits against farm operations that harm their ability to enjoy their homes, a clear response to similar suits this summer.

These changes move North Carolina’s rural communities from a Right to Farm State to a Right to Harm Your Neighbors State.

As former majority leader Paul Stam noted, the North Carolina Farm Bill is unconstitutional because it cuts off the right to access courts for damages, taking the property rights of hog farm neighbors away.

As early North Carolina judge and attorney James Iredell noted, the drafters of the N.C. Constitution could not have intended to replace the unlimited power of the British Parliament with the unlimited power of the N.C. General Assembly.

The pork industry has a long history of trampling on the rights of North Carolinians, including farmers. As well-documented in the News & Observer’s Pulitzer Prize winning series, throughout the 1980s, legislators with ties to the industry pushed sales tax exemptions, environmental rule exemptions, zoning power exemptions and other laws which promoted explosive growth in larger swine facilities.

When Republican State Rep. Cindy Watson questioned the government’s oversight of this explosive growth, she was overwhelmed by dark money push-polling and an advertising blitz.

The resulting growth in numbers of hogs came with less freedom for farmers to market their own animals, as public livestock markets were replaced by production contracts. Under those contracts, the producer’s pay is completely dependent on keeping as many pigs on the farm as his permit allows for as many days as possible.

In the case of a contract entered into evidence at the most recent trial, Smithfield’s Murphy-Brown subsidiary agreed to pay a producer $.082 per day for each hog that was raised on that farm.

These production contracts require the producers to pay for waste disposal and housing, which require large amounts of capital. Hog producers under contract have to be careful to toe the company line or lose their investment as well as their income. With no public livestock markets as a back-up, the producer works for Murphy-Brown indefinitely.

 

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And Smithfield’s CEO publicly threatened to leave North Carolina in response to the lawsuits filed against it here, saying it was unfair to punish the hog owners for hog odors.

It is fair to hold the hog owners accountable for odors and other impacts that prevent a person from enjoying their home. Courts have held hog owners liable for nuisance odors for hundreds of years.

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Smithfield has used producer contracts to place its liability for this damage on the backs of producers, who can least afford it. But these plaintiffs have not sued the producers, they sued the owners. It is Smithfield that seeks to drag the producers into the case, most recently saying the suits against the hog owner, Smithfield, for nuisance must be dismissed if the producer is not sued as well.

Smithfield’s PAC and its allies have made large payments to the elected officials who are supporting the North Carolina Farm Bill. In turn these officials are blaming the problem on the farms’ neighbors and their attorneys. Those neighbors just want to be able to have a picnic, hang their laundry and visit the graves of their families. Our General Assembly should let our justice system do its job and stop defending the indefensible.

Ryke Longest is a Clinical Professor of Law at the Duke University School of Law and the Nicholas School of the Environment

https://www.newsobserver.com/opinion/article213992774.html