Federal court strikes down NC law that barred farmworkers from seeking union representation via lawsuit settlements

A federal district court judge on Wednesday entered a permanent injunction against a provision from the North Carolina Farm Act of 2017 that invalidated lawsuit settlements in which parties agree to recognize union representation of farmworkers as part of the agreement. The challenged provision was passed by the General Assembly and signed into law by Gov. Roy Cooper in July of 2017 as part of an omnibus 24-page bill.

Farmworkers and civil rights groups announced a federal lawsuit outside the legislature in 2017. (Photo by Carol Brooke)

Advocacy groups filed suit challenging the anti-union provision in the U.S. District Court for the Middle District of North Carolina in November of 2017 on behalf of two farmworkers and the state’s only farmworker union, the Farm Labor Organizing Committee (FLOC).

[Note: NC Justice Center, the parent organization of Policy Watch, was among the organizations and law firms representing the plaintiffs in the suit.]

Plaintiffs claimed that FLOC had been deprived by the law of at least one opportunity to “assist members who have potential employment claims to negotiate with their employer for a prefiling settlement of such claims.”

In the complaint, counsel for the plaintiffs argued that the ban on making union representation a part of settlements strips farmworkers from securing settlement terms in their best interest, a right enjoyed by other private sector employees.

In reviewing and approving the decision of the Magistrate Judge to which the case was initially assigned, U.S. District Court Judge Loretta Biggs previously held that the challenged provision violates the First Amendment and first-amendment-related protections of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. On Wednesday, she permanently enjoined the state from seeking to enforce it.

The plaintiffs argued that the law not only infringed on workers’ First Amendment rights to form and participate in in unions, but it also violated the Equal Protection Clause of the Fourteenth Amendment, as most of the state’s farm workers are Latino.

“We continue to believe this law was crafted to block farmworkers from fighting for these rights with the help of the Farm Labor Organizing Committee negotiating on their behalf,” said Julia Solórzano, a staff attorney with the Southern Poverty Law Center’s Immigrant Justice Project representing the plaintiffs, in a press release. “These efforts to undermine the rights of these workers must not stand, and we will fight until they are defeated.”

The suit also challenged another portion of the law that prohibits agricultural producers from entering voluntary enforceable agreements to deduct union dues from farmworkers’ paychecks.

Despite striking down the settlement provision as unconstitutional, Judge Biggs, allowed the dues checkoff ban to remain in place.

As Policy Watch previously reported, many farmworkers in North Carolina are present in the state on a temporary visa for guest workers and don’t have credit cards or access to U.S. bank accounts, hence few other means to pay for union dues other than relying on dues transfer arrangements.

Plaintiffs are appealing the portion of the decision that upheld the dues checkoff provision to the Fourth Circuit Court of Appeals in Richmond, Va.

“We are confident that the Fourth Circuit will determine that farmworkers are entitled to the same rights as other North Carolina workers to freely choose for themselves whether to have union dues deducted from their paychecks,”  legal director for the ACLU of N.C. Kristi Graunke said in the press release.

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Today in greenwashing: a state-sponsored video about the purported benefits of biogas

A screenshot from the video shows a covered how waste lagoon, which is the anaerobic digester that captures methane. In the background is a secondary, uncovered lagoon that catches the excess waste, which in turn is sprayed on fields for fertilizer. The uncovered lagoon and the spray fields both emit methane.

A two-minute video promoting the alleged benefits of biogas is notable not for what it says, but for what it fails to say.

The video was co-sponsored by the NC Department of Agriculture, the NC Pork Council and the state’s Tobacco Trust Fund Commission. Heather Overton, spokeswoman for the agriculture department, said the commission paid $5,600 for the production. The General Assembly created the commission in 2000 to distribute settlement money from major cigarette manufacturers to farmers and other workers displaced by the downturn of the tobacco industry. It  is administratively housed under the agriculture department. The commission did not return an email message seeking comment.

The video was sent from Laura Kilian, the agriculture department’s legislative liaison, to members of the Senate Agriculture, Energy and Environment Committee on Monday.

What was said: “Renewable natural gas derived from biogas is recognized as some of the cleanest, most carbon-negative fuels that we can consume.”  — Gus Simmons of Cavanagh & Associates, the engineer behind the major biogas installations in the state: Optima KV and Align RNG. Simmons also is a member of the Energy Policy Council, appointed by the governor.

What was not said: First, who is doing the recognizing?
Second, the term “carbon-negative fuels” is slippery. A technology can emit no or very little carbon dioxide, but still send greenhouse gases into the air in the form of methane. Methane emissions can be expressed in tons of “carbon dioxide equivalent,” but it’s not clear what Simmons means here.

Nor did the video present data, not even a handy chart, to illustrate the “net methane” emissions from these operations. That means methane emitted from the secondary lagoon, which is uncovered, plus the sprayfield system, plus any leakage from the pipelines and other infrastructure, minus the methane captured by the covered lagoon, also known as an anaerobic digester. If the data is scientifically sound and contains good news, then by all means, share it.

Kraig Westerbeek of Smithfield Foods (left) and Gus Simmons of Optima KV in a state-produced video extolling the alleged benefits of biogas (Screenshot from video)

What was said: “We capture all the emissions. We capture all the biogas.” — Kraig Westerbeek, vice president environment and support operations, Smithfield Foods

What was not said: Again, if the farm has a secondary, uncovered lagoon, used to capture the leftover effluent from the covered digester, the the farm is not capturing “all the emissions.” Beneath the covered lagoon, nitrogen concentrations rise.

That nitrogen is then sent to the secondary lagoon along with the extra feces and urine, which is then sprayed onto farm fields. Many factors determine how much nitrogen — and nitrous oxide, yet another greenhouse gas — are emitted from the sprayfields and open lagoons.

A 2016 paper in the Journal of Animal Behavior and Meteorology explained that applying manure to the soil can emit nitrogen and nitrous oxide, but the type of feed, the weather, and the length of time the waste has been stored all influence emissions.

What was said: “It provides an economic benefit to farmer.” — Westerbeek

What was not said: Depending on the size of the farm, the number of swine and the complexity of the digester system, construction costs range from $600,000 to $1.2 million, according to industry reports and state records. There are ongoing operations and maintenance costs, as well. Construction costs can be covered by USDA or private bank loans, and sometimes grants.

Last week several lawmakers attended a presentation at the Optima KV facility and a participating farm near Magnolia. According to a lawmaker who was there, a farmer said he earned about $120,000 in revenue annually from selling biogas. If those earnings remain steady, it would take only five years to repay a $600,000 loan.

The proceeds can be calculated by factoring in the number of hogs, which allows the biogas facility operator to estimate the amount of methane generated.

But if the number of hogs declines, say because of a disease outbreak, flooding or hurricanes, then revenues would likely also decline.

What was said: “Perceptions are different from the realities of a hog farm. We’ll continue to be good neighbors and take care of the environment.” — Angie Maier, director of Government Affairs and Sustainability, NC Pork Council

What was not said: Maier is correct that perceptions don’t always square with reality. Staged photos of pink pigs in sunlit barns don’t reflect the actual conditions, which were revealed in a series of nuisance lawsuits in federal court. Photos entered into the court record showed manure-encrusted pigs crammed into dark quarters, the air peppered with flies.

Also omitted was any mention of the 4 million gallons of hog feces and urine that spilled from two farms — B&L and DC Mills — into waterways and wetlands last year. The B&L spill killed at least 1,000 fish.

Conspicuous by their absence was any note that five juries in a series of federal hog nuisance trials heard also disagreed that many of Smithfield’s hog farms are good neighbors. Those juries returned verdicts in favor of the neighbors of the offending farms, and awarded millions of dollars in damages. The federal appeals court also agreed with the jurors, with conservative Justice Harvie Wilkinson III, writing for the majority opinion:

“I am also not so naive as to imagine that hog farming could ever be an antiseptic enterprise. But the record here reveals outrageous conditions at Kinlaw Farms” — the first of dozens of Smithfield’s operations under scrutiny.

“It is past time to acknowledge the full harms that the unreformed practices of hog farming are inflicting,” Wilkinson wrote. “At the end of all this wreckage lies an uncomfortable truth,” Wilkinson wrote. “These nuisance conditions were unlikely to have persisted for long — or even to have arisen at all — had the neighbors of Kinlaw Farms been wealthier or more politically powerful.”

Policy Watch has repeatedly asked Simmons, Smithfield and Dominion to provide data to show the extent of methane capture and leakage. Simmons has not returned requests by email or telephone; in their responses, neither Smithfield and Dominion has answered the question.

Application withdrawn for giant poultry farm in Chatham County

A large poultry farm was proposed to be built on this 64-acre tract along Old US 421 near Goldston in Chatham County. However, that project is now in doubt because a USDA loan application that would have helped pay for the operation has been withdrawn. (File photo: Lisa Sorg)

A USDA loan application for a proposed chicken farm near Goldston in Chatham County has been withdrawn, raising questions of whether the enormous operation will be built.

Policy Watch learned of the withdrawal after asking the USDA for its final environmental assessment of the project.

That assessment was being prepared, but will not be completed now that the agency is not backing the loan.

The USDA representative said she could not provide a copy of the withdrawal request because of privacy reasons.

Because of restrictive state and federal disclosure policies, the farmer’s name was redacted from public documents. However, some of the redactions were poorly done, revealing the farmer’s name as Kyle Jackson Fields.

He already raises more than 100,000 birds in three barns on nearby Bear Creek Road for Mountaire Farms, according to Chatham County property records.

Fields was seeking a loan to build four barns, each 66 feet by 400 feet, and capable of holding 40,000 broilers each, which he would also raise for Mountaire. The company has a large slaughter facility 10 miles away in Siler City.

Because the farm would rotate its flocks, Fields could have raised as many as 750,00 broilers each year.

The USDA’s Farm Service Agency is in charge of the loan. The amount is not specified in public documents, but federal policy caps guaranteed operating loans at $1.75 million. The USDA offers FSA guaranteed loans to lenders that work with farmers who can’t borrow from conventional banks.

The farm would have been built on property owned by Watson Place, LLC, whose manager is State Sen. Tom McInnis of Richmond County. Most poultry farms in the state aren’t required to register or obtain a permit from the NC Department of Environmental Quality, so it’s possible that the farm could still be built, but without a federally backed loan.