EarthJustice and the UNC Center for Civil Rights, on behalf of the NC Environmental Justice Network, REACH and the Waterkeeper Alliance, filed the complaint this year. It echoes a similar one the groups filed in 2014 after the state Department of Environmental Quality issued a renewal permit to the state’s 2,000 large hog farms that allowed them to flush animal waste into open lagoons and spray it onto farm fields.
DEQ has maintained that the permit was revised to “better protect the state’s waters.”
In a letter dated Sept. 2, 2016, Sam Hayes, general counsel for DEQ, called the recent civil rights complaint “specious” and a “tactical collateral attack.”
Elizabeth Haddix, a senior staff attorney with the UNC Center for Civil Rights, called Hayes’s argument “pretty weak. Legally, it doesn’t hold up.”
Residents, primarily African-American and Native American, had long complained about the stench, insects, rats and water contamination that resulted from the large hog operations in their communities. In 2015, the EPA’s Office of Civil Rights Agreed to investigate the case.
Under Title VI of the Civil Rights Act, recipients of federal environmental and health funds, such as DEQ, are required to adhere to federal anti-discrimination laws.
Haddix said the plantiffs have repeatedly asked DEQ to do a racial disparity analysis before approving the hog waste permits. That analysis examines environmental justice factors, and are commonly done for landfills.
“Why wouldn’t they do it for CAFOs (confined animal feeding operations),” Haddix said, “when you have the apparent environmental impacts of them: the overwhelming stench, traffic from the trucks, the seeping lagoons into the groundwater and surface water. These are cumulative impact questions. That’s been completely ignored by DEQ.”
Hayes wrote that the environmental groups should have contested the 2014 permit before the Office of Administrative Hearings. Instead, they chose to file a civil rights complaint, what Hayes called “effectively a tactical collateral attack on a permit that Complainants were not willing to challenge in an evidentiary hearing.”
However, DEQ itself is on shaky tactical ground. Earlier this year, DEQ, EarthJustice and the UNC Center for Civil Rights had agreed to mediation about the oversight of hog farms in regards to the civil rights complaint. But those talks broke down after DEQ brought members of the N.C. Pork Council and the Pork Producers to a confidential mediation meeting.
In North Carolina, more than 25 federal civil lawsuits have been filed against the large pork producer, Murphy-Brown, which owns Smithfield. In the letter, Hayes noted several cases in which the Office of Civil Rights has either dismissed or refused to accept complaints if similar litigation is occurring at the same time. For that reason, Hayes says, the EPA should dismiss the complaint without prejudice. That means the complaint can be refiled after the court case has been decided.
However, those lawsuits do not involve DEQ as a defendant; nor are they associated with the civil rights complaint. Moreover, the first lawsuits had already been filed, in August 2014, when EPA’s Office of Civil Rights agreed to investigate the complaint in 2015.
Hayes also pointed to a comment made by one of the environmental advocates’ lawyers, in which she told a client that civil rights complaints are generally used “in tandem with other legal options” and are a “point of leverage.”
Should the EPA find the civil rights complaint has merit, it does have leverage over DEQ. It would try to force DEQ to comply, ultimately before an administrative law judge. If DEQ still refused to remedy the civil rights issues, it could lose federal funding, including that for water quality, wetlands, Superfund and coastal programs.