agriculture, Courts & the Law, Environment

The jury selected (no vegetarians), trial begins today in nuisance suit against Murphy-Brown hog farm

Photo by Michael Loudon, (Creative Commons)

Selected from a pool of 50 people, six women and six men will decide a pivotal, high-profile — and possibly historic — federal case that pits rural neighbors of an industrialized hog farm against global pork producer Murphy-Brown, a subsidiary of Smithfield Foods.

This case, one of more than a half-dozen scheduled to be heard in US District Court in Raleigh this year, centers on whether the nuisances — odor, flies, trucks and noise — from Kimlaw Farms in Bladen County are harming the quality of life and health of its neighbors. The 10 plaintiffs in this case are requesting both compensatory damages for the impacts on the enjoyment of their property, as well as punitive damages.

Murphy-Brown owns the hogs and is the defendant, not Kimlaw, the contract farmer. Murphy-Brown counters that its farms are safe and comply with state law, and that the odors are properly managed.

The trial could last as long as four weeks; opening arguments begin today at 9 a.m.

Murphy-Brown has gone to considerable effort to thwart nuisance cases. Nationwide, Right to Farm laws, which limit nuisance claims, have been passed in all 50 states. Agricultural states, such as Iowa, Texas and North Carolina, have some of the strongest statutes that favor corporate-owned farms. In fact, the upcoming nuisance cases could be the last of its kind in North Carolina. A year ago, under pressure from the pork industry, the legislature passed a controversial law sharply curbing the rights of citizens to recover compensatory damages — money for quality of life issues — in nuisance suits.

In early versions of the bill, the legislature tried to make the law retroactive. Had lawmakers succeeded, these cases, filed in 2014, would have been moot. However, the provision was ultimately struck before the bill became law. Gov. Roy Cooper vetoed the bill, but lawmakers overrode it.

But last September, Murphy-Brown filed a motion asking the federal court to reinterpret the law to apply retroactively, claiming that was the legislature’s intent. The court denied the motion and allowed the cases to proceed.

Considering the enormity and complexity of the case, jury selection went quickly yesterday. US District Court Senior Judge Earl Britt  presided over the process. After extensive questioning, the number of potential jurors, all of them from counties in the Eastern District, was whittled to 43, then 24, and finally, 12: nine whites and three people of color with diverse backgrounds and jobs: industrial engineer, software developers, trucking fleet manager, college student, mechanic, nurse practitioner, computer repairman, cashier, accountant and machine technician. They live in Wake, Johnston, Granville, Vance and Franklin counties.

The lines of questioning provided insight into the issues that might arise during the trial. Among the queries:

  • “Are you a vegan or a vegetarian?” (One person said yes, made the final 24, but did not advance to the final 12.)
  • “Do any of you have asthma?” (2 did.) “Migraines?” (1 replied yes)
  • “Do you think lobbyists are more beneficial to companies than to the public?” (6 yeas)
  • “Do you think that companies shape laws that give them an unfair advantage? (9 said yes.)
  • “Do you think climate change is overrated or does not exist? (3 replied yes.)

Judge Britt, who is 86 and was appointed to the bench by President Jimmy Carter in 1980, set a firm, authoritative, yet homespun tone in the courtroom. “This will be a high-profile case,” Britt said, instructing the jury to avoid all media coverage of the trial. (He’s never sequestered a jury in his 38 years on the bench.)

And as attorneys for the plaintiffs and the defense privately conferred on the selection, he advised the jury pool, smiling,  “I tell you, that if it looks like they’re talking about you, they are.”

agriculture, Environment

In settlement with environmental groups, DEQ changes complaint process about swine farms

Elizabeth Haddix (Photos: Julius L. Chambers Center for Civil Rights)

The NC Department of Environmental Quality says it will be more transparent about how it handles citizens complaints against industrialized livestock farms, including those that have been cited for violations as the result of those complaints.

DEQ is implementing the new complaint investigation process as part of a settlement agreement with several environmental groups and their attorneys: Cape Fear River Watch, Waterkeeper Alliance and the NC Environmental Justice Network were represented by Elizabeth Haddix and Mark Dorosin of the newly formed Julius L. Chambers Center for Civil Rights.

Haddix and Dorosin were previously attorneys with the UNC Center for Civil Rights until the university system’s board of governors disbanded it for political reasons. The NC Pork Council, a frequent target of the center’s litigation, was among the industry groups that had complained about the center to the board.

DEQ’s new protocol includes timelines for complaint investigation and a requirement that agency investigators consider all information submitted by complainants. Under the agreement, DEQ must detail documentation of how agency staff responded to the citizen complaints.

In addition, DEQ agreed to maintain, and update monthly, an online list of complaints for which a determination of violation has been made, so that citizens can track the outcome of their interaction with the agency.

DEQ also agreed to publish an annual report denoting the number of complaints received about animal operations, number of complaints investigated, and number of complaints where a violation was found.

Mark Dorosin

The case started in the fall of 2016 after watchdogs captured time-stamped and geo-located images of swine farm operators spraying waste on fields after a flood watch had been issued, before Tropical Storm Hermine and Hurricane Matthew, according to a statement from Haddix and Dorosin. State permits prohibit farmers from applying swine waste on fields within a certain time of when rain or thunderstorms are forecast. This restriction helps keep the manure from running off the farm and onto nearby property or into waterways.

Although the watchdogs reported the illegal spraying to DEQ — then under the leadership of Secretary Donald van der Vaart — the agency did not respond. In December 2016, the groups filed a challenge in the NC Office of Administrative Hearings.

“African American, Latino, and Native American communities disproportionately bear the burden of living near industrial hog operations in Eastern North Carolina,” said NCEJN co-director Naeema Muhammad in a prepared statement.” This settlement is an important step toward easing that burden.”

Today’s settlement is separate from a Title VI civil rights complaint that NCEJN, Waterkeeper Alliance, and REACH  have filed with the EPA against DEQ, alleging that the general permitting process for swine farms disproportionately burdens communities of color.

The EPA had scheduled a confidential mediation session between DEQ and the complainants. But in January 2016, DEQ officials apparently tipped NC Pork Council representatives to the mediation. Even though the Pork Council was not a party to the mediation, several representatives showed up anyway. Given the tense history between the Pork Council, swine farmers and their neighbors, the complainants viewed the intrusion as an attempt to intimidate them.

Haddix and Dorosin in turn filed a retaliation complaint on behalf of the complainants in the spring of 2016.

The complaint is still in private arbitration.

agriculture, Commentary, Environment

The Great Recession was a “wonderful blessing” and other bizarre takes from an oversight committee


Except for the people who benefit from others’ misery — Wall Street short-sellers, pyramid schemers and prosperity gospel profiteers — the Great Recession was difficult, painful, even life-altering.

But not for Rep. Jimmy Dixon, a Republican from Duplin County. The chairman of the Joint Oversight Committee on Agriculture, Environment and Natural Resources, Dixon proclaimed yesterday afternoon that the “Great Recession was a wonderful blessing.” His point was that a sudden financial belt-tightening in 2008-09 benefitted state government, turning it into a lean, mean machine, albeit one that left several departments running on fumes.

The Great Recession was a wonderful blessing Click To Tweet

“Our bad decisions come when the money is flowing,” said Dixon, who, over the past 20 years, has received $21,000 in federal farm subsidies to help cushion him against life’s ups and downs.

As a hypothetical, let’s say that Dixon’s pronouncement is true. The logic follows that, flush with a $550 billion surplus this year, the legislature made a very poor decision in cutting the budget of NC Department of Environmental Quality by $1.8 million through 2019.

The recent budget bill directed DEQ to achieve this by Reorganization through Reduction program. Stripped of its Orwellian overtones, RTR means doing more with less, begging employees to take early retirement, shifting workloads so one person does the work of two, and probably shaking the printer cartridges to milk every single precious drop of cyan.

These cuts have occurred while the state budget overall has increased and the environmental crises facing North Carolina — GenX, coal ash, emerging contaminants — have become more complex. Forgive North Carolinians if they forget to count their blessings.

Assistant Secretary of the Environment Sheila Holman told the oversight committee that to reach the required RTR benchmark, DEQ will pay nearly $468,000 in severance and $58,000 in health insurance to 12 employees who took the buyout and whose positions are state-funded. This equals an average of $39,000 each in severance, which is based on length of service, plus $4,833 apiece for health insurance.

Even with the payouts, the RTR is projected to save $446,400 in appropriated funds.

Sen. Angela Bryant, a Democrat from Nash County, asked for an “upfront and transparent report of the impacts.”

Such details weren’t available at the meeting, but Holman told the committee that positions within administration, coastal management, customer service, waste management, and energy, mining and land resources were eliminated.

The Division of Water Resources remained unscathed because the budget directive came down in June as the GenX crisis was escalating. The resources required to grapple with the contaminated drinking water ” highlighted the shortages” in that division, Holman said.

Rep. Pricey Harrison, a Guilford County Democrat, noted that 31 positions throughout the agency have been redirected to deal with GenX and emerging contaminants. Those employees, in water resources, waste management and air quality now spend 70 percent of their time working on that issue and 30 percent on their usual duties, Holman said.

“How are we covering for current obligations?” Harrison asked.

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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.)

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