agriculture, Courts & the Law, Environment, News

In damning opinion, federal appeals court rules against Murphy-Brown in hog nuisance suits

Photos taken inside one of the hog barns at Kinlaw Farms and presented to the jury in the case of McKiver vs. Smithfield Hog Production Division (Photos from court filings)

Punitive damages will be recalculated, but court sides with plaintiffs on all other arguments 

This is a developing story.

Update 6:25 p.m.: Smithfield issued a statement saying they have “resolved these cases through a settlement that will take into account the divided decision of the court. Information about the terms of the settlement will not be disclosed.”

Murphy-Brown lost nearly every legal argument it posed before the Fourth Circuit Court of Appeals, which, in a damning opinion issued this afternoon reaffirmed a jury verdict awarding monetary damages to 10 neighbors who had filed nuisance suits against the world’s largest pork producer.

After 10 months since the oral arguments, the Fourth Circuit affirmed a decision issued by the District Court that Murphy-Brown’s operation of its industrialized hog operations — open lagoon and spray field systems, “dead boxes” and all-hours truck traffic — unduly harmed neighbors’ quality of life. The only point that Murphy-Brown prevailed on was the role of executive salaries and parent company profits in calculating punitive damages.

The case centered on neighbors of the Kinlaw Farm in Bladen County, a contract grower for Murphy-Brown/Smithfield Foods. However, the suit was filed in 2018 against Murphy-Brown, which controls every aspect of the farm, from the type and amount of feed, to the number of hogs raised, to the lagoon-and-sprayfield waste management systems.

After more than two weeks of hearing testimony, a jury awarded each plaintiff  $75,000 each in compensatory damages, plus another $5 million apiece for punitive damages. The total: Upward of $50 million, an historic amount.

Punitive damages can be awarded if a jury finds a defendant “committed fraud,”  “acted in malice” or in “wanton neglect.”

There will be no new trial, the appellate court ruled, only a rehearing on the amount of punitive damages that can be awarded to neighbors without considering the parent company or executives’ financial information. Compensatory damages are unaffected.

At the district court level, the neighbors were represented by Wallace & Graham, based in Salisbury, who had hired Michael Kaeske of Texas to argue the case. McGuireWoods in Richmond, Va., represented Murphy-Brown.

In the 144-page opinion, appeals court judges disarmed Murphy-Brown’s many defenses, including its major points:

  • Murphy-Brown had tried to reel in Kinlaw Farms as a responsible party, even though the pork producer dictates the terms of the operation. Had Murphy-Brown succeeded in its argument, the company could have further buttressed its claim that the nuisances suits, of which there are dozens, harmed family farmers. In fact, Murphy-Brown is responsible for the damages.
  • The company had claimed that the Right to Farm Act of 2017, which sharply limited the amount of damages neighbors could recover in case they won in court, was retroactive. (Gov. Cooper vetoed the bill, but lawmakers overrode it.) By the time that legislation was enacted, dozens of nuisance suits had been filed in federal court against the company. Even though the text of the bill said it would be effective when it “became law and after that date,” Murphy-Brown and several lawmakers said it merely “clarified” previous farm acts and should apply retroactively.
    Original bill language did say it should apply retroactively, but was removed over concerns it could not pass constitutional muster.
    The appellate court disagreed, saying “we have nothing to conclude that the 2017 Right to Farm Act amendments should apply retroactively. … If made retroactive it would reward powerful defendants who faced with a possible judgment against them could escape responsibility by raising a specter of doubt about something the state’s courts have long made available.”
  • Murphy-Brown also lost its claim that the expert testimony of Shane Rogers should be struck. Rogers is an environmental engineer who testified that hog feces had been found on neighbors’ homes. He based these findings on Pig2Bac, a technology that can determine the fingerprint of fecal material. Although the technology had not been peer-reviewed, the court said that fact was only one consideration of its reliability.

The court also found that Murphy-Brown knew that its farms were causing problems for the neighbors, even without formal complaints. “Murphy-Brown’s own collection of media articles reporting conditions associated with its farming practices and policies, as well as its knowledge of studies detailing the effects of lagoon and spray field operations and types of effective remediation,” showed that the company was fully aware of the odor, flies, buzzards and truck traffic. “Yet despite this knowledge,” the court wrote, Murphy-Brown “persisted in practices it knew were reasonably likely to result in injury to neighboring properties.”

Nor did the court buy the company’s argument that the Kinlaw farm operated legally and with required permits, and thus should not be found liable for nuisance. “This is beside the point,” the court wrote. “Lawful enterprises can constitute a nuisance ….”

During the trial, Murphy-Brown executives testified that the company had taken steps to reduce impacts on neighbors. This included changing the type of feed to decrease odors from the manure. However, the court determined that these steps “were motivated by profit or efficiency of operations as oppose to concern for neighbors. … The fact that Murphy-Brown policies expressly encouraged growers to avoid spraying at times neighbors were known to be outside demonstrates that [the company] knew its spray field operation was still likely to interfere with use and enjoyment of their property.”

The neighbors, wrote the court, “presented clear and convincing  evidence that Murphy-Brown knew about the likely harms, denied their existence and fought for them not to come to light.”

Commentary, COVID-19, Environment

Scientist’s calculation offers hopeful news on climate crisis

Image: Adobe Stock

Coronavirus relief funds could easily pay to stop the worst of climate change while rebooting economies

As of late summer, governments around the world had pledged US$12.2 trillion of relief in response to the coronavirus pandemic. That’s around 15% of global GDP, three times larger than government spending put forward during and after the 2008-2009 global financial crisis and enough for every adult in the world to receive a $2,000 check.

A good chunk of initial COVID-19 aid funding is being used – quite rightly – to support health care systems, preserve people’s livelihoods and stabilize employment. But much is slated for investment into infrastructure and economies. Whether those are climate-friendly investments or not still remains to be seen.

While the world’s bout with the virus is far from over, there is already talk amongst leaders like Joe Biden and Boris Johnson about rebuilding toward a more sustainable, more resilient future.

The global economic rebuild could include efforts to avoid the worst impacts of one of today’s looming mega-threats: climate change.

Money needed to achieve climate goals

Moving toward a cleaner energy world is cheaper than many people perceive.

My work at the Electric Power Research Institute, University of Tennessee and with the Intergovernmental Panel on Climate Change focuses on the costs and benefits of energy and climate decisions made by governments and companies.

According to research done by me and my colleagues, we estimate it would cost around $1.4 trillion per year over the next five years in clean-energy investment to meet the goals of the Paris climate agreement. This amount – if invested around the globe in things like solar and wind power, advanced power grids, carbon capture and storage, biofuels, electric vehicles, better insulated homes and other carbon-saving efforts – would start to bend the emissions curve, putting the world on a path to net-zero emissions by mid-century.

In other words, it is by no means impossible to hold global temperature rise to +1.5 C (2.7 F).

A lot is already being spent on climate initiatives

While $1.4 trillion per year sounds like a lot of money, it’s actually not so much greater than what is already being spent on clean energy worldwide.

Countries are projected to invest an estimated $1.1 trillion per year over the next five years into low-carbon energy strategies. This pathway would take the world toward 3 degrees Celsius of warming, a level that could be quite harmful for the planet.

Much of this funding comes in response to national, state and local policy mandates and incentives. But a lot is happening thanks to pure economics as well: companies aiming to profit from new clean energy installations, which are becoming increasingly more affordable in many places.

Thus, taking into account the $1.1 trillion per year baked into the system already, the additional amount of clean energy investment needed to get on a 1.5 C track comes to just $0.3 trillion – or $300 billion – per year over the next five years.

For the entire globe, $300 billion per year over five years – or $1.5 trillion cumulative – is not an outrageous sum of money. It represents just one-eighth of the $12.2 trillion governments around the world have announced for COVID-19 relief to date.

Thus, a fraction of current bailout funding could provide the extra near-term boost the world needs to get on track to meet +2 or 1.5 C (+3.6 or 2.7 F) of warming, the levels countries committed to in the 2015 Paris climate agreement.

Change course, then move forward

President-elect Joe Biden is calling for some $1.7 trillion investment in clean energy and energy efficiency over the next 10 years. This level of investment, if also realized in other countries, could put the world on a path to meeting the goals of the Paris Agreement.

The U.S. has already committed trillions of dollars for COVID-19 relief, much of which is going toward important needs like patient care, vaccine research and direct economic bailouts. But economic recovery plans contain money for long-term economic growth, too. And that’s the money I am suggesting could be directed toward climate-friendly investments.

Meeting the Paris goals will ultimately demand continued and increasing investments going forward, climbing above the $300 billion per year over the next five years that would get the world on track to 1.5 C (2.7 F). Nevertheless, an initial injection of funds into clean energy could achieve two goals: boost the global economy through large infrastructure spending and accelerate the deployment of clean energy production and energy efficiency measures.

[Deep knowledge, daily. Sign up for The Conversation’s newsletter.]

Like with so many things, the question seems to be one of political will – are governments and companies willing and able to turn toward a cleaner, more prosperous future to the benefit of all?

Public funding appears to be available – for now – and given how massive this funding is, it provides a unique opportunity to catalyze the development, deployment and dissemination of clean technologies during the next decade, an absolutely critical period in the fight against climate change.The Conversation

David L. McCollum, Senior Research Scientist, University of Tennessee

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Environment, News

Complaint: US Fish and Wildlife Service illegally allowing red wolves to go extinct — again

Six red wolf pups were born at the Museum of Life and Science in Durham in April 2017. Four survived. Earlier this year, eight wolves were moved from the museum to a half-acre habitat at a Virginia Zoo. A federal red wolf recovery plan directs wildlife officials to release wolves raised in captivity into the wild. However, the US Fish and Wildlife Service has failed to do so since 2014. (Photo: Museum of Life and Science)

Just seven wild red wolves are still alive in the world, all of them in eastern North Carolina, the result of federal wildlife officials’ flouting a court order, according to a legal complaint filed by the Southern Environmental Law Center yesterday.

The complaint alleges that despite a 2018 court order to protect the species, the US Fish and Wildlife Service has violated the Endangered Species Act by failing to introduce previously captive red wolves from zoos and nature centers into the Alligator and Pocosin wildlife refuges, which are designated as an official recovery area.

Nor has USFWS continued its coyote sterilization program in the recovery area. That program is important because it keeps coyotes and red wolves from breeding, thus diluting the wolves’ bloodline. Hunters can mistake coyotes for wolves, further reducing the number.

Both coyote sterilization and the release of formerly captive wolves are required as part of the USFWS  Red Wolf Adaptive Management Work Plan.

No previously captive wolves have been released into the recovery area since 2014. Only eight coyotes have been sterilized in the recovery area since 2018 — all of them last February. By contrast, 75 coyotes were sterilized in the recovery area from 2012 to 2014, according to the complaint.

“Faced with a wild population of only seven known animals, the Fish and Wildlife Service is now claiming—without basis—that it’s not allowed to take proven, necessary measures to save the wild red wolves,” said Sierra Weaver, senior attorney at the Southern Environmental Law Center. “The service urgently needs to restart red wolf releases from captivity, which it did regularly for 27 years.  Otherwise we’re going to lose the world’s only wild population of this wolf.”

USFWS did not respond to an email seeking comment on the complaint. (Update: USFWS provided a statement on Nov. 18. “The U.S. Fish and Wildlife Service is committed to the recovery of the red wolf. We are engaged in recovery efforts and continuing to do so, including updating the Red Wolf Recovery Plan and increasing the captive population to ensure the genetic health of the species and support future reintroductions. The Service is also focusing on the management of the nonessential experimental population (NEP) in North Carolina.”

A “nonessential” designation means that, on the basis of the best available information, the experimental population, such as the red wolf, is not essential for the continued existence of the species, according to the agency.

However, it has argued in court filings that new federal rules prohibit the agency from releasing captive red wolves into the wild. However, USFWS has not presented evidence to back up the claim. And even if the claim is true, USFWS must implement comparable conservation measures to conserve the species, according to the Endangered Species Act.

Since 1967, when USFWS listed the red wolf was listed as endangered, the ever-changing fate of the wolves has often been ensnared in federal rules, landowner disputes and court proceedings. The wolf already has already been declared extinct in the wild once, in 1980. Four years later, federal officials approved a recovery plan and breeding program, which they later touted as a success. By 2000, there were 200 known red wolves — tracked by special collars — in eastern North Carolina, the only place they are found in the world.

But over time, USFWS and the NC Wildlife Commission caved to pressure by area landowners who opposed the recovery program, alleging the wolves roamed outside their boundaries. Officials allowed the wolves who left their designated area to be legally shot, a policy later overturned by a federal judge.

Because of ongoing lax enforcement to protect the species and what a federal judge in 2018 called “arbitrary and capricious decisions” by USFWS, the wolves are again on the brink of extinction.

No litters of red wolves were born in the wild in North Carolina in the last two years, the first time this has happened since 1998.

The SELC is representing the Red Wolf Coalition, Defenders of Wildlife and the Animal Welfare Institute in the action.

The complaint, filed in US District Court for the Eastern District of North Carolina.

Environment

Public hearing, comment period announced for consent order with Greensboro over 1,4-Dioxane

The compound 1,4-Dioxane, a likely carcinogen, has been found in surface water and drinking water throughout the Cape Fear River Basin. Sources include industrial dischargers and runoff from farm fields that have been applied with biosolids from wastewater treatment plants. (Map: DEQ)

The NC Department of Environmental Quality will hold a remote public hearing next month about a Special Order of Consent to correct the City of Greensboro’s illegal discharges of 1,4-Dioxane into the downstream drinking water supply.

Because of the level of public interest, the hearing is scheduled for Wednesday, Dec. 9, on a proposed Special Order by Consent (SOC) for the City of Greensboro’s T.Z. Osborne Wastewater Treatment Plant discharge permit.

The proposed order addresses issues related to the discharge of elevated levels of 1,4-dioxane from the wastewater treatment plan to South Buffalo Creek in the Cape Fear River Basin. 1,4-dioxane is an emerging compound that EPA has identified as a likely human carcinogen.

A two-part investigation Policy Watch published in July revealed that Greensboro officials had shielded its industrial dischargers of 1,4-Dioxane from scrutiny. They buried 1,4-Dioxane data in public reports. Some upstream utilities officials even pooh-poohed the dangers of 1,4-Dioxane; another falsely accused an NC State scientist of scaring the public for personal gain.

After an industrial discharger Shamrock Environmental accidentally discharged 1,4-Dioxane level into the sewer system and the wastewater treatment plant, the compound contaminated the Haw River and Pittsboro’s drinking water, at levels far above the recommended health level. Even though Greensboro utilities officials knew concentrations were high, they failed to notify downstream communities and DEQ for more than a month.

The EPA does not regulate 1,4-Dioxane in drinking water, but the compound is regulated in surface water, such as the Haw River, and in groundwater.

DEQ cited Greensboro with a Notice of Violation but has proposed fining the city just $5,000.

DEQ’s Division of Water Resources has amended the Special Order by Consent based on comments received on the draft, and has published a FAQ document to answer questions received from the first comment period. The City of Greensboro has accepted all of the changes, and the revised, proposed SOC is being provided for public input.

State regulators have also opened the public comment period, which runs through Dec. 9.

In addition to the public hearing, comments on the SOC may be submitted now through December 9, 2020 by emailing [email protected] with “T.Z. Osborne WWTP SOC” in the subject line. Comments may also be provided by calling 336-776-9691 and leaving a recorded message. Please state your name and any affiliation before commenting. Written comments may be mailed to
N.C. Division of Water Resources
Water Quality Permitting Section
Attn: Brianna Young
1617 Mail Service Center
Raleigh, NC 27699-1617

To prevent the spread of COVID-19, the hearing will be held remotely and the public is invited to provide comments online or by phone.

Date:   Wednesday, December 9, 2020
Time: 6 p.m. (Attendees may begin joining at 5:45 PM)
Join online: WebEx

Join by phone:  1-415-655-0003; (access code): 178 487 5557
To speak during the hearing, registration is required by noon, Dec. 9.

 

 

Environment

Colonial Pipeline “significantly underestimated” amount of gasoline spilled in Huntersville

 

The Colonial Pipeline transports gasoline and other petroleum products from Texas to New Jersey; the route runs through part of North Carolina. (Map: Colonial Pipeline)

During a major spill in August, Colonial Pipeline released more gasoline into the environment than the company originally reported, the NC Department of Environmental Quality announced today. However, Colonial has not yet provided a new estimate.

From DEQ today:

Based on current information, the North Carolina Department of Environmental Quality has determined that Colonial Pipeline has significantly underestimated the volume of gasoline released from the Aug. 14, 2020, spill in Mecklenburg County’s Oehler Nature Preserve near Huntersville’s town limits.

Colonial Pipeline estimated 272,580 gallons of product lost; however, the semi-weekly report provided on Tuesday, Nov. 3, indicates 267,313 gallons have been recovered so far. The amount and continued rate of free product recovery, along with other data submitted by Colonial Pipeline, indicate that the spill is significantly larger than initially reported. Colonial Pipeline has not provided a new estimated release volume. DEQ is requiring Colonial to recalculate the estimated release, and they will verify with a third-party consultant.

Since the spill was reported, DEQ has required Colonial Pipeline to take all appropriate actions to protect the community and will continue to do so throughout the cleanup process. Efforts underway include the sampling of drinking water wells, installation of monitoring and recovery wells and recovery/removal of gasoline.

At this time, the horizontal extent or boundary of the free product area has been defined, and monitoring wells have been installed around that perimeter to monitor for any further migration. Colonial Pipeline has installed pumps in the wells within the free product area and is actively recovering approximately 3,000 to 5,000 gallons of gasoline per day.”

As Policy Watch previously reported, Colonial has not been transparent about the severity of the spill, which occurred near several residential neighborhoods. DEQ has cited the company for groundwater violations, including levels of benzene, a known carcinogen.

The company has attributed the spill to a breach in a section of 42-year-old pipeline.

A 90-day accident report is due to federal and state regulators by Nov. 14.