Disclosure: The NC Justice Center filed a brief in support of plaintiffs suing Smithfield/Murphy-Brown for nuisance. NC Policy Watch is a project of the Justice Center, but had no role in the decision to file the brief nor its contents. In order to maintain its editorial independence, Policy Watch has not read the brief and has not communicated with anyone at the Justice Center about it.
Although the bulk of the 2019 Farm Act deals with the regulation of hemp — which Sen. Brent Jackson calls, without irony, a “budding” industry — there are more than 25 sections in the bill, many of them controversial.
As Policy Watch reported this morning, one section would dismantle portions of the Public Records law to shield swine farms from scrutiny. Records generated “by or for” the state and county Soil and Water Conservation Districts would be exempt from the statute. The Department of Agriculture and bill proponents contend this provision provides consistency with federal law, which keeps certain individual farm records confidential.
“It merely mirrors federal law,” said Sen. Brent Jackson, a Republican representing three major hog-producing counties.
But Ryke Longest, director of the Duke University Environmental Policy Clinic, told Policy Watch that is not true. Federal exemptions apply “only to federal records for federal programs. State cost-share records are not exempt. This law change would cover all documents related to the state cost-share program, whether submitted by private parties or the soil and water conservation district.”
At the committee meeting, Jackson said the “parties that need to see the records” could do so.
“Who are the parties? Who makes that decision?” asked Sen. Mike Woodard, a Democrat representing Durham, Granville and Person counties.
“The regulatory agencies would have access,” Jackson said. “It would be under the purview of the Department of Agriculture.”
“What’s to hide?” asked Sen. Harper Peterson, a New Hanover County Democrat.
No one answered the question.
Peterson questioned the exemption for swine farms that store manure for biogas from odor rules. The Environmental Management Commission and DEQ began rulemaking nearly a year ago, a common timeline for the complex process.
“The EMC was making rules more stringent than they should have been,” Jackson replied.
“Do we have a copy of their recommendations?” Peterson asked.
“They’ve been dragging their feet,” Jackson replied.
After a year of rulemaking — a common amount of time for the EMC — the public comment period on the odor rules ended May 14.
The Senate ANER committee is expected to vote on the bill next Wednesday.
CAFO — a four-letter word?
Semantics occasionally creep into legislative committee meetings. Several lawmakers, Rep. Jimmy Dixon among them, dislike the use of “farm” to describe solar and wind energy installations. (Merriam-Webster: pronounced färm, from Middle English, “a tract of land devoted to agricultural purposes; an area containing a number of similar structures or objects, such as radio antennas or storage tanks.”)
Today, the term “CAFOs” — short for Concentrated Animal Feeding Operations — was disparaged.
“They’re not CAFOs. They are family farms,” Sen. Brent Jackson said. “The term ‘CAFO’ has a negative connotation.”
But CAFOs is correct. And while families might indeed own the land and owe the debt, the corporations own the animals and dictate the terms of their management.
First, the EPA defines AFOs as “agricultural enterprises where animals are kept and raised in confined situations. AFOs congregate animals, feed, manure and urine, dead animals, and production operations on a small land area. Feed is brought to the animals rather than the animals grazing or otherwise seeking feed in pastures, fields, or on rangeland.”
A CAFO is another EPA term for a large, concentrated AFO. “A CAFO is an AFO with more than 1000 animal units (an animal unit is defined as an animal equivalent of 1,000 pounds live weight and equates to 1,000 head of beef cattle, 700 dairy cows, 2500 swine weighing more than 55 pounds, 125,000 broiler chickens, or 82,000 laying hens or pullets) confined on site for more than 45 days during the year. Any AFO that discharges manure or wastewater into a natural or man-made ditch, stream or other waterway is defined as a CAFO, regardless of size.”
Buried in the budget, a regulatory rollback
One of the most controversial environmental provisions in the budget bill delays for one year the implementation of general permits for swine, cattle, and a small number of poultry facilities that use a wet litter method of manure management. The permits were to go into effect on Oct. 1.They want corporate socialism but no public scrutiny Click To Tweet
DEQ held several public hearings on the draft permit, including a stakeholder meeting that included agriculture interests. Nonetheless, the Farm Bureau was displeased with the results and earlier this month filed suit in administrative court, alleging DEQ didn’t follow proper procedure in issuing the permit.
“After a lengthy and transparent process involving discussions with numerous stakeholders from all walks of life and a review of more than 6,500 public comments, DEQ revised three permits to provide more certainty to farmers and communities,” DEQ Secretary Michael Regan said in a press release. “The changes targeted by this budget provision are not new rules or regulations. They are part of the permit-writing process, which is well within DEQ’s authority.”
Some of the new permit requirements are more stringent than the previous version, issued in 2014, and resulted from a Title VI civil rights settlement between DEQ and neighbors of hog farms. The delay means farms would continue to operate under the old permits until the matter is settled.
These include groundwater monitoring at farms within the 100-year flood plain; additional reporting and equipment maintenance requirements; reducing the time between a National Weather Service hurricane/tropical storm warning or flood watch and when a farm must stop spraying waste on its fields.
“Industry representatives fully participated in that process,” said the NC Environmental Justice Network in a prepared statement. The NCEJN is composed of several groups and individuals, many of whom live near industrialized hog operations. “Their effort now to extend the old permit is not about a flawed process. It is their attempt to circumvent the proper process because the industry didn’t get everything it wanted.”
The Pork Council did not answer emailed questions about the budget provision.
Will Hendrick, an attorney with the Waterkeeper Alliance, said that if the bill becomes law with this language, key groundwater quality monitoring would be delayed. “It would be a lost year of data,” Hendrick said, adding that the intention “is to increase the amount of information available to the public.”
The $450,000 appropriation for swine biogas projects also has raised concerns of environmental advocates. The money was transferred from the Agriculture Farmland Preservation Trust Fund, which helps sustain smaller farms. And while methane, including that emitted by livestock, is a potent greenhouse gas worth capturing, swine biogas programs could incentivize the construction of natural gas pipelines — which in turn, leak methane.
Michelle Nowlin, supervising attorney of the Duke University Environmental Law Clinic, told Policy Watch that the federal government has identified biogas as a conservation practice. “The conundrum is that federal energy policy is pushing technology that conflicts with state law,” said Nowlin, who recently wrote a chapter for a textbook on climate change and agricultural law.
Even with significant public subsidies, biogas operations don’t have to comply with odor rules and nuisance laws. And if the Farm Act passes with the Public Records exemptions intact, and the budget giveaways to the industrialized livestock industry stand, Nowlin said, “the overall legislative context is erecting a legal fortress to protect the hog industry. They want corporate socialism but no public scrutiny.”