agriculture, Courts & the Law, Environment

In a setback to Murphy-Brown, hog nuisance suits can go on, federal judge rules

Ham produced by Smithfield, which is part of Murphy-Brown (Photo: Amazon)

This story is part of a larger series on the national pork industry that NC Policy Watch is co-publishing with Environmental Health News. The series, Peak Pig, begins at EHN today.

On Wednesday, Policy Watch will examine the history of nuisance suits, plus swine waste-to energy technologies, and more.

The 26 nuisance lawsuits against hog giant Murphy-Brown can proceed to trial, a federal district court judge ruled last week. While the decision marks a brief victory for the residents living near the industrialized hog farms, the litigation might be the last of its kind in North Carolina.

In his 33-page ruling, Senior US District Court Judge Earl Britt undercut some of Murphy-Brown’s arguments, while allowing others: Britt did seal several pieces of evidence because it purportedly contained confidential business information. And he agreed to hear a motion in December that would separate the cases.

That strategy could make the lawsuits more expensive for the plaintiffs. And should one plaintiff lose, legal precedents might arise in court that could then jeopardize future rulings.

Mark Anderson, attorney with McGuire Woods, which is representing the pork producer, did not return an email seeking comment.

But Britt did set a tone that partially favored the plaintiffs. He discounted Murphy-Brown’s contention that their farms are immune from nuisance litigation under the state’s Right to Farm law. That law essentially shields industrialized livestock operations from nuisance suits if the plaintiffs have “moved to the nuisance”; in other words, precedence generally goes to whoever was there first, the residents or the farm.

In this case, many of the plaintiffs are living on land that has been in their families for generations.

“Their land use had been in existence well before the operations of the subject farms began,” Britt wrote. “The fact that some plaintiffs may have used their land for agricultural purposes in addition to a residence or that other agricultural uses have pre-existed in the locality does not alter the court’s analysis.”

These lawsuits against Murphy-Brown — the nation’s largest pork producer — prompted the creation of House Bill 467. Now law, the controversial measure prohibits plaintiffs who win nuisance suits from being awarded compensatory damages, including money to pay for medical treatment related to a farm’s odor, flies and noise.

Instead, winning plaintiffs can recover only damages that cover the devaluation of their property. Given that their property values could already be decreased because of the proximity to an industrialized farm, that amount of money would likely be negligible in comparison. Plaintiffs can still be awarded punitive damages, but those claims are much harder to prove.

The justification, lawmakers said, was that the number of lawsuits would supposedly financially hobble the billion-dollar agribusiness.

“Industry can’t sustain this,” said Sen. Brent Jackson during a debate on the bill. “Without livestock there would be tumbleweed rolling down city streets.”

Considering the political and financial muscle of Murphy-Brown, that scenario is unlikely.

At one point this year, it was uncertain if the 26 lawsuits could even go on. Under the original version of HB 467, the litigation would have been tossed. That’s because the bill language would have applied the law retroactively, to cases that had already been filed. The suits were filed in 2015.

The retroactive provision threatened the bill’s viability, so it was struck. Nonetheless, earlier this fall Murphy-Brown tried to halt the lawsuits by arguing that the state legislature intended to include the retroactive language, but didn’t. Britt’s ruling doesn’t address that motion specifically, but by allowing the cases to go to trial, he appears to discount it.

Britt’s decision also undercuts some state lawmakers’ arguments that the courts needed clarity from the legislature. “North Carolina law is not clear on these kinds of nuisance issues,” said State Rep. Jimmy Dixon during a committee debate.

“Judge Britt could deduce from existing precedent” the legal remedies available for the plaintiffs,” said Will Hendrick, staff attorney for the NC Pure Farms Pure Waters Campaign, this week. “He didn’t need guidance.”

Judge Britt will hold a hearing on several motions on Dec. 4, at the federal courthouse in Raleigh.

 

Hog Order Britt Nov by Anonymous B0mRtPKjko on Scribd

agriculture, Courts & the Law, Environment

“Unsubstantiated by competent evidence”: Judge rules against Civitas’s Francis De Luca in Smithfield Foods case

Wake County Superior Court Paul Ridgeway ruled in favor of Attorney General Josh Stein in granting a motion for summary judgment.

Francis De Luca tried to thread a legal needle but instead poked himself in the eye.

In a lawsuit filed last October, De Luca, the director of conservative group Civitas, had claimed that millions of dollars generated by a 2000 settlement agreement between the state attorney general’s office and Smithfield Foods were being unconstitutionally disbursed.

But beneath the surface, De Luca’s lawsuit appears to be less about the recipients — conservation groups, universities and other nonprofits — or the money spent to enhance and improve the state’s environment.

Rather, although never articulated, the subtext of the litigation, as the American Spectator wrote, was that Chinese money illegally funded Roy Cooper’s successful gubernatorial campaign against Pat McCrory.

Even absent the sub rosa theories, De Luca’s constitutional contentions — argued by his attorney, former House Majority Leader Paul Stam — did not convince a judge. In an Oct. 12 ruling, Wake County Superior Court Judge Paul Ridgeway wrote that De Luca’s arguments were “unsubstantiated by competent evidence, contrary to settled law or not relevant.”

The backstory starts 17 years ago when, after then-Attorney General Mike Easley negotiated a settlement agreement with Smithfield Foods requiring the company to commit $15 million for the development of “environmentally superior technology” to manage swine waste. Additionally, the company was to annually pay an amount equal to $1 per hog that it owned in North Carolina, for the next 25 years. The amount was capped at $2 million a year.

Those payments have since gone into an escrow account managed by PNC Bank. Each year, as part of the Environmental Enhancement Program, the attorney general’s office solicits proposals and then awards funding to groups working on environmental projects that would improve water quality in the state.

That money, De Luca argued, should be viewed not as a settlement but as penalty payments. And per the state constitution, civil penalties, fees and forfeitures instead must go to the affected counties, which in turn, use the money for public schools. (Public charter schools, which Civitas champions over traditional public schools, would likely also be eligible.)

Smithfield was an “environmental violator,” De Luca and Stam argued, according to the court documents, and “there is little in the way of reasonable consideration for a company to pay $50 million for environmental enhancement if the agreement didn’t function as a settlement for something.”

Stein, who inherited the litigation, provided several affidavits from attorneys and state environmental officials who were privy to the original agreement. All stated under oath that the settlement was not related to a civil penalty.

For one, the state had taken no enforcement action, nor assessed any penalties against Smithfield. And besides, the agreement was with the AG’s office, not state environmental regulators, which can “solely assess” civil penalties. Nor did the settlement foreclose on the possibility that the state could take enforcement actions in the future.

De Luca’s ostensible legal argument spiraled into a political conspiracy theory last October, on the heels of the election. Here is a synopsis of De Luca’s thinking, which he laid out in a complaint to the state board of elections. (These claims were outside the scope of the lawsuit against Stein, but the case was likely an attempt to set the table for future litigation.)

Read more

agriculture, Environment

Facing lawsuit, NC Department of Agriculture agrees to provide public records without exorbitant fees

Steven Troxler, commissioner of the NC Department of Agriculture and Consumer Services. Under pressure, the department has changed its records policy to make it easier for people to access public information. (Photo: NCDACS)

Under the McCrory administration, it was pain-staking, if not impossible to pry public records from the hands of state agencies; requests for the taxpayer-funded information languished for months, even years.

Yet since Gov. Cooper took office, most of these departments have been more responsive and forthcoming with providing public taxpayer-funded information — with one notable exception: the NC Department of Agriculture.

Now the agriculture department has agreed to change its records policy, after reaching a settlement with the Southern Environmental Law Center and the Waterkeeper Alliance.

In the agreement announced last week, the department will update its public records policy to stop charging fees for the inspection of public records, according to the SELC.

(These inspections don’t incur copying costs. Groups or individuals occasionally bring their own portable scanners to preserve the records on their personal computers.)

Headed by Commissioner Steve Troxler, an anti-regulatory ally of McCrory, the department proposed charging the Waterkeeper Alliance $4,000 merely to inspect public records related to damage from Hurricane Matthew on hog and poultry farms.

As part of the agreement, the department will make that information available for free to the Waterkeeper Alliance and to reimburse the group for the costs of litigation.

Finally, under the settlement terms, the department will donate $2,000 to the Sunshine Center of the North Carolina Open Government Coalition – a nonpartisan group that advocates for public access to government activity, records and meetings.

The alliance had made the request to both the Department of Agriculture and the Department of Environmental Quality in January. DEQ produced the records without charge in March.

 

 

agriculture, Environment

Swine farm discharges waste into Trent River; DEQ investigating

A swine farm near Comfort discharged waste into a tributary that flows into the Trent River near Old Comfort Road and Highway 41. DEQ hasn’t named the farm; there are 49 in Jones County. (Map: Google)

An unknown amount of wastewater from a swine farm near the town of Comfort has spilled into the Trent River in Jones County, the NC Department of Environmental Quality announced late this afternoon. As a result, state officials are advising kayakers and boaters to avoid the Trent River downstream, particularly at the Chinqapin Chapel Road.

The spill was reported to the agency midday Thursday, DEQ said. A water quality team from the division’s Washington Regional office was deployed to the farm. DEQ investigators saw wastewater in a wooded area and flowing off-site. The wastewater discharge traveled nearly two miles from the farm through an unnamed tributary, eventually reaching the Trent River near the intersection of Highway 41 and Old Comfort Road.

DEQ investigators took water samples for testing and analysis, but the results are pending. The state is continuing to investigate the spill, DEQ said, and will determine an appropriate enforcement action.

According to DEQ’s database of animal feeding operation permits, there are 49 industrialized swine farms in Jones County, with a total of as many as 220,000 hogs.

The Trent River starts in Lenoir County, about 15 miles southwest of Kinston. It meanders for 100 miles through Jones and Craven counties before joining the Neuse River in downtown New Bern.

agriculture, Courts & the Law, Environment

Waterkeeper Alliance sues state agriculture department over public records request

 

Steven Troxler, commissioner of the NC Department of Agriculture and Consumer Services (Photo: NCDACS)

The Waterkeeper Alliance, known for its role as an environmental watchdog over industrialized hog farming practices, has filed a complaint against the NC Department of Agriculture and Consumer Services for allegedly violating the state’s Public Records Act.

The dispute centers on whether the agency lawfully charged the alliance more than $2,000 to merely inspect public documents. The documents in question were related to potential flood damage from Hurricane Matthew on hog and poultry farms.

A department spokesperson could not be reached for comment, although it is common for agencies to refrain from speaking about ongoing litigation.

The issue dates back to earlier this year, when the alliance filed a public records request on Jan. 20. It asked to inspect “all communications” with the EPA, USDA, FEMA, and any state, city, county government ‘as part of the agriculture’s review, consultation of response to flooding of agricultural operations in North Carolina related to Hurricane Matthew,” which had occurred the previous October.

The alliance also asked to inspect related to the department’s emergency response, proposals and preparedness plans as they related to storm-related flooding of these operations. The group had planned to copy or scan the documents using its own portable equipment.

The group filed a similar request with the NC Department of Environmental Quality, which produced the records in March and allowed the group to inspect them without charging fees.

The records are of interest because when Hurricane Matthew brought historic floods to eastern North Carolina, there were concerns over the integrity of the area’s 3,000-plus hog waste lagoons. Agriculture Commissioner Steven Troxler has maintained no lagoons were breached, but advocates, some of whom flew over the area, said they observed floodwaters topping the brim of some structures.

On March 3,  2017, Tien Cheng, an attorney with the agriculture department, responded that it would require more than 250 hours to fill the request. Cheng estimated that at $18 an hour — the pay rate for a full-time administrative assistant — the alliance would be charged at least $4,000 to inspect the records. However, a week later, a different agriculture department attorney called the alliance and reversed course, saying the group could inspect the records for free.

Cheng went on to write agencies can charge a special service fee when a request requires extensive use of resources. But the term “extensive” has not been defined. And in 2013 and 2014, former Gov. Pat McCrory exploited that vague language to revise public records policy for eight state cabinet agencies. Designed to reduce the number of records requests, those revisions were emblematic of the tension between the McCrory administration and the media and law firms seeking information.

Read more