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.

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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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agriculture, NC Budget and Tax Center

Schools are concerned over shutdown’s impact on meal programs

Amid the longest government shutdown in United States history, many school systems are concerned with their ability to receive reimbursements for their free and reduced priced meal programs. North Carolina’s school nutrition programs are a critical tool in the fight to end childhood hunger for students across the state, serving more than one million students breakfast or lunch at school each day.

In Vance County, school officials continue to serve breakfast and lunch, but have taken steps to prepare for the long-term impacts by restricting the portions of food students are receiving. According to a letter written by the United States Department of Agriculture (USDA), the Food and Nutrition Services (FNS) has secured additional funding which “can support program operations at normal levels well into March.”

At the moment, there is no reason for school districts to take the drastic step of stopping or changing students’ food and meals. There are also other methods school districts can utilize to fund meals if the government does not open in time, such as the state’s ability to draw on their reserves or rainy day funds.The NC Department of Public Instruction (DPI) plans to keep school officials informed as the shutdown continues.

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agriculture, Governor Roy Cooper

Cooper to Trump: End government shutdown, provide federal funds for hurricane recovery, NC farmers

Governor Roy Cooper is pressing President Donald Trump to end the federal government shutdown.

In a letter released Wednesday, Gov. Cooper wrote that the long-term work to rebuild in the aftermath of Hurricane Florence is being delayed each day the shutdown continues. The shutdown is also negatively impacting farmers hoping to plan for this year’s planting season and need help from the US Department of Agriculture.

Here’s an excerpt from the governor’s letter:

“While we continue the short-term recovery with FEMA’s help, our critical long-term work to rebuild stronger and smarter is delayed with every day that federal funds are held in Washington,” Gov. Cooper wrote in the letter sent today.

In April 2018, North Carolina was notified of a $168 million award of Community Development Block Grant-Disaster Recovery (CDBG-DR) from the US Housing and Urban Development to make the state’s flood-prone areas safer. The state remains unable to use these funds until guidance is published in the Federal Register, which cannot happen while the federal government remains shuttered.

In September, a HUD appropriation for 2018 storms including Hurricane Florence was enacted as part of the FAA reauthorization bill but awaits allocation to affected states. The $1.68 billion allocated will be shared by North Carolina and other states recovering from natural disasters, but without guidance states are left waiting to learn how much funding they will receive and how best to put these funds to work for recovery and mitigation.

The shutdown also limits North Carolina’s access to HUD experts needed to help with rebuilding efforts in the state. In addition, North Carolina farmers are without help from federal agriculture experts at a critical time.

“The government shutdown is also threatening the livelihood of our farmers, many of whom were swamped by the same hurricane waters that destroyed homes and businesses,” Gov. Cooper wrote in his letter. “Help from the US Department of Agriculture for hurricane affected farms is unavailable, and farmers hoping to plan for this year’s planting season are running out of time. “

“During your visit following Hurricane Florence, you promised me the 100% support of the federal government in North Carolina’s recovery. This shutdown makes that promise harder to keep. Please work with Congressional leaders to end this shutdown so our communities can rebuild quickly and effectively.”

Read the full letter here.

Earlier this week the National Governors Association called on President Trump and congressional leaders to immediately end the partial federal government shutdown that began Dec. 22.

agriculture, Courts & the Law, Environment

Judge tosses punitive damages claims in hog nuisance case

The punitive damages phase of the most recent hog nuisance trial against Smithfield Foods had lasted just a half-day before the judge pulled the plug.

Yesterday a jury found Smithfield had committed a nuisance against its neighbors of Sholar Farm in Sampson County and awarded eight plaintiffs compensatory damages. During the punitive phase, which began yesterday afternoon, plaintiffs’ attorney Michael Kaeske presented his case to the jury that Smithfield had acted with “willful and wanton disregard” for the neighbors — not just those on Herring Road, but throughout the state — and for more than 20 years.

But this morning, as Kaeske tried to enter seven exhibits into the record for the jury to review, Senior District Court Judge David Faber allowed only three to be admitted into evidence. Faber then ruled there wasn’t enough evidence for the jury to assess punitive damages. Case closed. The jury went home.

The purpose of punitive damages is to deter future bad behavior by the defendant — and that of other potential defendants who might consider comporting themselves the same way. Nine factors play into the question of whether to award these damages, including the duration of the misconduct and the defendant’s awareness of it.

During the opening statements for the punitive phase, held yesterday afternoon, Kaeske told the jury, backed by more than 20 years’ of articles, memos and documents, that Smithfield had known odor was a problem at its hundreds of farms. The company’s lobbyists and proxies at the NC Pork Council had helped craft pivotal legislation to give the industry even more power to site farms wherever it pleased and to undercut regulations on odor and water discharge.

“This is the way we finish the job,” Kaeske told the jury.

But the job now goes unfinished. Throughout the trial, Faber never hid his contempt for Kaeske’s argumentative style of questioning. But yesterday, the judge sighed, grumbled and told the courtroom that the case needed to end soon. Faber disallowed any mention that Smithfield is owned by a Chinese conglomerate; nor could Kaeske discuss the ample salaries of Smithfield executives. Kaeske had presented this information in previous trials to prove that Smithfield could well afford to upgrade its waste lagoon and sprayfield technology.

“Those are emotional arguments,” Faber said, dismissing Kaeske’s request.

Jim Neale of McGuireWoods, representing Smithfield, objected to many of Kaeske’s statements. In fact, Neale argued, unsuccessfully, that the word “Smithfield” should even be uttered because technically the Sholar Farm is owned by Murphy-Brown. However, Murphy-Brown is wholly owned by Smithfield — and, even the judge agreed, that fact had been central to the first phase of the case.

To underscore the Smithfield-Murphy-Brown connection, Kaeske asked his first witness, Don Butler, a former director of Smithfield Foods, about the signage in front of each farm. Yes, Butler said, Smithfield had replaced all the signs that read “Murphy-Brown” or “Carroll’s” or any of the companies it had bought. Now all of the signs say “Smithfield.”

And so on, for more than two hours of objections, overrulings and sustainings, until the judge, jury and courtroom observers were exhausted.

This morning, Judge Faber unveiled a prewritten statement as he called off the punitive phase of the case. No amount of Kaeske’s protestations changed the judge’s mind. By 11 o’clock, the jury had been sent home.

The next case, also overseen by Judge Faber, is scheduled for January.