agriculture, Commentary, Courts & the Law, Defending Democracy, Education, Legislature

The week’s Top Stories on Policy Watch

Commentary:

1. In the IStation saga, Mark Johnson’s failings get a big stage

If North Carolina Superintendent Mark Johnson ever fizzled in his lustrous perch in DPI’s corner office, his sharpest critics surmised, he would be failed by his extraordinarily limited bona fides.

After all, when it comes to Johnson’s background – two years in a Charlotte classroom via Teach for America, a stint as a corporate attorney, and a brief tenure as a school board member in Winston-Salem – there is simply not much to parse over.

“I mean, he has taught two years,” a flabbergasted June Atkinson marveled in 2016, with no small amount of condescension, when Johnson ousted her. “He’s never run an organization that has almost 900 people. He has never traveled to the 100 counties. He doesn’t have a background. So, it’s like, how do I teach or how do I help a person who is an infant in public education to become an adult overnight to be able to help public education in this state?”

The image conjured up by Atkinson’s damning assessment – that of an in-over-his-head novice – endures today among Johnson’s detractors.

But after IStation, after the iPads, after the supremely suspect rollout of the superintendent’s propagandizing website, perhaps we were wrong. [Read more…]

Bonus read: Monday numbers: A closer look at the depleted ranks at the Department of Public Instruction

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2. NC Supreme Court justice publicly maligns colleagues, urges critics of America to “just leave” the country


State judicial code makes discipline unlikely for Justice Paul Newby

The only registered Republican on the state Supreme Court likely won’t face any consequences after publicly disparaging his fellow justices, urging a crowd to watch their work over the next 18 months for judicial activism, and telling people who don’t like America to “just leave.”

“Sue till you’re blue. Sue till you’re blue,” said Paul Newby during a speech in Wake County two weekends ago. “What do you think the most dangerous branch of government is? The judicial branch is the correct answer. Imagine seven AOC’s on the state Supreme Court.”

Newby, who has announced he will run for Chief Justice in 2020, was met with clapping and a loud “boo” from the crowd. He was referring to New York Democratic Congresswoman Alexandria Ocasio-Cortez, whose initials have become a sort of Republican slur. [Read more…]

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Commentary:

3. Unbecoming of a judge: NC Supreme Court justice’s Trump-like comments go too far

It’s no secret that the United States has a significant and growing problem when it comes to the matter of selecting judges. This problem was on vivid public display in 2016, when the Republican majority of the United States Senate refused to consider a highly qualified presidential nominee to the U.S. Supreme Court for nearly a full year on blatantly partisan grounds.

As troubling as the blockade of Merrick Garland and the subsequent flood of frequently unqualified ideologues advanced by President Donald Trump have been, however, the situation is arguably even more dire at the state level, where the phenomenon of judges running for election continues to give rise to all manner of problematic behavior – both by judicial candidates themselves and the forces supporting and opposing their candidacies.

As Policy Watch journalist Melissa Boughton reported yesterday, there was a new and troubling installment in this ongoing saga last week when North Carolina Supreme Court Justice Paul Newby let loose with a startlingly partisan attack on his fellow justices during a speech to a Wake County Republican audience.[Read more…]

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4. Hours wasted and a flip-flop on hemp in the Farm Act befuddles House committee

The NC Farm Act: Four months, seven editions, at least a dozen hours of committee hearings and legislative staff time, reams of paper, hundreds of miles of travel by the public, some from as far away as the mountains — and today the bill is back to its original Senate form.

“Why is the ag committee chair [Rep. Jimmy Dixon] taking a different position than earlier in the process?” Rep. Chuck McGrady said in the House Judiciary Committee this morning. “I’m confused.”[Read more…]

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5. Activists to Congress: N.C. residents living ‘on bottled water and fear’ 

What did leading chemical corporations know about the health risks of PFAS, and when did they know it?

Members of Congress sought an answer to that question this week at a hearing on widespread public exposure to per- and polyfluoroalkyl substances (PFAS), a dangerous class of chemicals that’s ubiquitous in North Carolina and other states. One lawmaker described PFAS as “the DDT of our era.”

California Rep. Harley Rouda, chairman of the U.S. House Committee on Oversight and Reform Environment Subcommittee, opened the hearing by accusing companies of withholding information from the public.

DuPont and other companies have long known about the negative health effects of PFAS, which are used in everyday products such as microwave popcorn bags and nonstick pans, Rouda said. [Read more…]

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6. The budget, the veto and Medicaid

Democratic Senator who initially supported the budget says it’s time for the GOP to negotiate

The political stand-off over whether to expand Medicaid is stretching the state budget stalemate deep into summer with no end in site. But this week Sen. Gladys Robinson (D-Guilford) said she’s worried about how the gridlock could hurt the 1.6 million low-income North Carolinians already using Medicaid and undermine planned changes to the system.

The current Medicaid program in North Carolina is complex and expensive, with the federal government paying $2 to every $1 the state contributes to its $14 billion annual cost. But the way that system works is set to undergo a significant change in November. [Read more…]

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7. Partisan gerrymandering trial to conclude today after Thursday bombshell

A two-week long trial about whether Republican lawmakers violated the constitution when they drew voting maps to maximize their partisan advantage will come to an end today.

The Wake County Superior Court three-judge panel likely won’t make a decision for a least a few weeks after hearing mostly complex testimony from expert witnesses that delved deep into the weeds of North Carolina redistricting.

The trial will continue at 9 a.m. today with another expert witness, this time called to testify on behalf of the intervenors in Common Cause v. Lewis.

John Branch, an attorney for the intervenors — a group of Republican voters — commenced a direct examination of Michael Barber, an assistant professor of political science at Brigham Young University, late Thursday afternoon. [Read more…]

Bonus reads:
Did Hofeller draw NC maps before redistricting process? Judges throw out expert testimony showing he didn’t

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8. After “A Decade Without a Raise” workers, elected officials call for raising minimum wage

Dayosha Davis works in fast food, lives in public housing in Durham and struggles to provide for her two children.

Child care starts at $250 a week, she said, which is difficult to afford on the $7.25 an hour minimum wage.

“Last year I enrolled my daughter in pre-school,” Davis said. “And I had to take her out of pre-school because I couldn’t continue to pay for her education, even with help from my mother. It was a hard pill to swallow.”

Wednesday marked 10 years since North Carolina last raised the minimum wage — from $6.55 to $7.25 per hour. [Read more…]

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9. Listen to our latest radio interviews and micro-podcasts

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10. Weekly Editorial Cartoon:

agriculture, Environment

Hours wasted and a flip-flop on hemp in the Farm Act befuddles House committee

Industrial hemp in a greenhouse (Photo: NC Industrial Hemp Association)

The NC Farm Act: Four months, seven editions, at least a dozen hours of committee hearings and legislative staff time, reams of paper, hundreds of miles of travel by the public, some from as far away as the mountains — and today the bill is back to its original Senate form.

“Why is the ag committee chair [Rep. Jimmy Dixon] taking a different position than earlier in the process?” Rep. Chuck McGrady said in the House Judiciary Committee this morning. “I’m confused.”

The Proposed Committee Substitute was distributed to lawmakers last night.

Rep. Dixon, who recently called marijuana a “hellish gateway drug,” has been a hemp hardliner, and largely responsible for the House holdup on smokable hemp. Meanwhile, Sen. Brent Jackson favors smokable hemp because it would economically benefit farmers.

“Have you changed your view on hemp?” McGrady, a Henderson County Republican, asked Dixon.

“I’ve expressed my particular view very objectively throughout the process,” Dixon said, adding he had met with Jackson and interested parties about the measure. “I encourage you to vote for the bill.”

Most of the division has focused on the smokable hemp portion of the bill. Law enforcement has pleaded with legislators to prohibit smokable hemp because it’s difficult for officers to discern between it and marijuana. Farmers, though, say the concerns are overblown. If they can’t grow smokable products, they will be at an economic disadvantage compared with other states that do allow it.

CBD oil and similar extracts, plus rope, textiles, food products would be legal.

Hemp contains less than 0.3 percent THC, the active ingredient in marijuana that induces a high.

For the past two months, Senate and House committees have fought, flipped and flopped. The ban on smokable hemp was to go into effect in December 2020, then 2019, and now it’s 2020 again. Smokable hemp was classified as a controlled substance, like marijuana. Now it’s not. There was language to study the issue of smokable hemp. That’s been struck.

Rep. Billy Richardson, a Cumberland County Democrat, complained that the bill the Judiciary Committee was presented with differed from the version that left House Agriculture three weeks ago.

“This is the process that we go through,” Dixon replied. “Positions change over time, as frequently happens.”

However, positions have not changed on other controversial sections of the bill:

  • exempting hog farms that use or produce biogas from the state’s odor rules
  • allowing hog farms that use anaerobic lagoons and digesters to expand even though there is a 20-year moratorium on new or expanded industrialized swine operations
  • making secret many public records kept by local and state soil and water conservation districts in regards to industrialized livestock operations

Democrat Rep. Pricey Harrison of Guilford County tried unsuccessfully to amend the bill several times to strike the odor rule and expansion provisions.

“Since we continue to love the smell of breakfast, I ask you to oppose the amendment,” Dixon said.

The sealing of soil and water documents also alarmed some committee members. The language is a direct rebuke to attorneys and journalists that have used these documents either in court cases or in stories critical of hog farms.

“What’s the problem with making this available to the public?” Richardson said.

“The public can already get the information,” Dixon said. “From the local soil and water district office, the local Farm Services Agency Office, or they can contact my office.”

If the bill becomes law, none of those offices is required to provide the documents.

Rep. Rachel Hunt, a Mecklenburg County Democrat, attempted to strike the confidentiality provision. “In the spirit of transparency, the public needs to be aware of this information,” Hunt said. “This is a violation of the Sunshine Law.”

“We think there is plenty of sunshine,” Dixon said.

agriculture, Environment

FDA: GenX, 14 types of perfluorinated compounds found in produce grown within 10 miles of Chemours

Leafy greens collected at local farmers markets near Fayetteville contained elevated levels of GenX and other perfluorinated compounds, according to a recent FDA study.

The FDA shared the findings at an environmental conference in Finland, but not publicly in the US. The Environmental Defense Fund obtained photographs of the agency’s findings. The Environmental Working Group released them today.

Contacted by Policy Watch, an FDA spokesman shared the findings and said the agency is preparing to post the findings to a webpage. The FDA did not reply to a question as to why the results were not released earlier.

In October 2017, researchers tested for the presence of 16 PFAS in 91 food samples collected in the Mid-Atlantic region, including North Carolina, Ohio, Kentucky, Tennessee, West Virginia, Maryland, Virginia, and Delaware.

In a related study, in 2018 the FDA sampled leafy greens grown within 10 miles of a PFAS production facility. GenX was detected at 200 parts per trillion in produce grown within 10 miles of Chemours, according to the study. There is no regulatory standard for GenX, although state health officials have set an advisory goal of 140 ppt in drinking water.

Fourteen other types of PFAS were also detected in the produce, including PFOA, which was phased out in 2015. Levels of PFBA, used to make photographic film, reached nearly 600 ppt. The cumulative concentration of PFAS in the produce ranged from 1 ppt to more than 1,100 ppt.

The FDA noted that the levels were not likely a human health concern, but that foods grown near PFAS sources should be monitored.

The greens were collected before state regulators required Chemours to control its air emissions at the Fayetteville plant. The compounds leaving the stacks, mixing with rainwater and humidity, then falling to the earth, contaminating groundwater, private drinking water wells and food miles away.

As part of a consent order between Chemours and the NC Department of Environmental Quality, the company is installing thermal oxidizers to eliminate the emissions initially by 92 percent, and then by 99 percent by the end of this year.

In food samples collected in other states, PFAS was detected in 14 of the 91 samples collected and examined by the FDA, including PFOS in almost half of the meat and seafood products, PFPeA in chocolate milk and high levels in chocolate cake with icing, PFBA in pineapple, and PFHxS in sweet potato.

PFAS are used in the manufacture of nonstick cookware, plastic packaging, water-resistant fabrics and other consumer goods. The compounds have been linked to thyroid, reproductive, kidney, liver and developmental disorders, as well as some cancers. They are widespread in the environment, contaminating groundwater, drinking water, lakes, rivers, soil, compost and food. Despite the health effects of PFAS, the EPA has failed to regulate them.

Newer studies suggest that “short-chain” PFAS, like GenX, may also pose a risk to human health.  To study the effects of certain short-chain PFAS and their effects on human health, the FDA said it is collaborating with other federal health and environmental agencies “to determine appropriate next steps for the authorizations for the use of short-chain PFAS in food packaging.”

Along with concerned citizens and other environmental and public health advocates, the Environmental Working Group is asking lawmakers and regulators to designate PFAS as hazardous substances, not just individually but as a class.

EWG is also calling for expanded monitoring for PFAS in food, air, water and humans; ending the use of the compounds in packaging, food handling equipment and cookware; ending sewage sludge applications on farm fields when PFAS has been detected; updating EPA’s “sludge rule” to require testing; and quickly establish clean up standards in tap water and groundwater.

agriculture, Environment, Legislature

The Farm Act, state budget are “erecting a fortress for the hog industry”

Sen. Brent Jackson, R-Duplin, Johnston, Sampson: “I don’t like the term CAFO. It has negative connotations.”

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.

Sen. Harper Peterson, a New Hanover County Democrat: “What is there to hide?”

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.”

agriculture, Environment

Jury awards plaintiffs $420,000 as Smithfield loses fifth hog nuisance trial

Lendora Farland is nicknamed “Sunshine,” but her testimony last month in federal court illustrated the misery her family has endured, caused, she said, by the stench and flies from a nearby industrialized hog farm in Duplin County.

“The smell is like when a baby has a fever and diarrhea,” Farland, who is a certified nursing assistant, testified. “And when I’m cooking dinner — pork chops, I like them, yes I do — I don’t want to eat with that smell.”

Farland’s affection for pork chops drove home the point that the plaintiffs in all of the hog nuisance cases don’t think Murphy-Brown, which owns the pigs, should go out of business, But the billion-dollar company should change how disposes of the millions of gallons of hog feces and urine. In each case, plaintiffs’ attorneys have argued that Murphy-Brown and its parent company, Smithfield, could choose to eliminate the antiquated waste lagoon and sprayfield system, but to avoid denting their corporate profit margins, have not.

On Friday, a jury awarded 10 plaintiffs a total of $420,000 in compensatory and punitive damages in a hog nuisance trial against Murphy-Brown, a subsidiary of Smithfield Foods, the world’s largest pork producer.

Punitive damages are awarded when a jury determines a defendant “committed fraud, or acted with malice or engaged in willful or wanton conduct.”Murphy-Brown has lost all five of the nuisance cases in federal district court, with gross damages totaling $550.5 million. Because of a state cap on punitive awards, the net payout is $97.2 million.

Smithfield hasn’t paid these damages, pending the company’s appeal to the Fourth Circuit Court of Appeals.

However, in another setback for the company, Senior District Court Judge Earl Britt denied Murphy-Brown’s request for a new trial in the third case, in which the jury awarded six plaintiffs an historic $475 million. (Britt reduced the amount to $94.5 million.) Britt also denied two other motions related to that case: One filed by Murphy-Brown to erase the punitive damages, and a second filed by the plaintiff’s attorneys to lift the cap on punitive damages, on constitutional grounds. 

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While the jury deliberated, 100 miles to the southeast, the air in Warsaw stunk. The water was clammy, and carried the acrid odor from nearby swine farms, waste lagoons and sprayfields, depositing it outside the REACH office on Ward’s Bridge Road.

Members of the community group REACH (Rural Empowerment Association for Community Help) and the Duke University Law and Policy Clinic were leading a bus tour of Duplin County affected by industrialized livestock operations: Not just hogs, but also poultry and cattle. Many of those on the tour, primarily environmental law students, had never witnessed, up close, anyway, enormous spray guns spewing geysers of waste onto fields — and the cows grazing on them.

(The former head of the EPA’s environmental justice program, Mustafa Santiago Ali was also on the tour, but he is well-acquainted with the issue.)

Until Friday, many had not seen a lagoon filled nearly to its berm. Many had not seen homes so close — a half-mile or less — to these enormous operations.

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