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.

 

Environment, Governor Roy Cooper, Legislature

Private firm to investigate Gov. Cooper’s Atlantic Coast Pipeline deal: “We have no political agenda”

A private firm formed by three former federal agents will investigate Gov. Roy Cooper’s controversial memorandum of understanding with Dominion Energy over the Atlantic Coast Pipeline.

At a subcommittee meeting today, lawmakers announced they had hired Eagle Intel, based in Wilmington, to conduct the investigation. The firm, composed of Frank Brostrom, Tom Beers and Kevin Greene, incorporated last year. Brostrom worked for the FBI, and Beers and Greene for the Internal Revenue Service. Their areas of expertise focused on tax evasion and financial and political corruption, as well as organized crime and terrorism cases.

This is not a criminal probe, but a civil one, prompted by legislative oversight, said Sen. Harry Brown, a Republican from Onslow County.

The firm charges $100 an hour for its services, but until the investigation is under way, it’s unknown what the final cost will be.

Under the non-binding MOU signed by Cooper and Dominion nearly a year ago, the Virginia-based utility and Duke Energy, co-owners of ACP, LLC, would pay $57.8 million for economic development and renewable energy projects along the 160-mile route through eastern North Carolina. The announcement of the MOU coincided by just hours with the Department of Environmental Quality’s granting of a key water quality permit for the project.

Republican lawmakers then introduced and passed House Bill 90, which funneled the money away from its original purpose and toward public schools in the affected counties. However, no money has been disbursed yet. The Federal Energy Regulatory Commission has not issued its final construction permits for part of the route in North Carolina, which would trigger half of the amount to be due.

The other half of the money would be payable when the ACP is completed. That could take years. Last week, a federal appeals court halted all construction on the 600-mile pipeline over US Fish and Wildlife’s questionable assessment of the project’s potential damage to endangered species.

DEQ and the governor’s office have denied working in tandem on the timing of the permit and the MOU. But Republican lawmakers want Eagle Intel to determine if the MOU involved “pay-to-play” — that the voluntary monetary contribution smoothed the way for the water quality permit.

Lawmakers, led by a Republican majoriy, informally requested documents from the governor’s office and DEQ about the MOU, but never received them, despite multiple inquiries. They filed a formal public records request last month. (Environmental advocates and the media, including Policy Watch, likewise filed records requests from the governor and received no documents of significance; the requests have yet to be completely fulfilled.)

Sen. Floyd McKissick, a Durham Democrat on the panel that hired Eagle Intel, said the governor’s office and DEQ are expected to provide documents by Dec. 20. “I think it’s premature to investigate,” McKissick said.

But the governor’s office, as if to say, “touche’,” filed its own records request with lawmakers. In a document dated today, Dec. 12, Kristi Jones, the governor’s chief of staff, formally asked for voluminous information that could reveal whether Republican lawmakers’ concerns are legitimate or merely a power play. Among the governor’s request is communications among legislators, staff and any third parties, including the state Republican Party, executive director Dallas Woodhouse and chairman Robin Hayes.

The agents, who were present at today’s subcommittee meeting, emphasized that they have “no political agenda, no dog in the fight.”

“We will follow where the facts lead us,” Brostrom said.

According to voter registration records, Brostrom and Greene are registered Republicans; Beers is unaffiliated.

Environment

Appellate court orders construction to halt along all 600 miles of Atlantic Coast Pipeline

All construction has stopped along the 600-mile route of the Atlantic Coast Pipeline, including in North Carolina, after a Fourth Circuit Court of Appeals ruling last Friday.

The basis for the court’s stay is the risk pipeline construction presents to four endangered species: the Indiana bat, Clubshell mussels, Rusty-Patched Bumblebee and the Madison Cave Isopod.

These species are found along a 100-mile stretch in Virginia and West Virginia.

Three plaintiffs — Defenders of Wildlife, the Sierra Club and the Virginia Wilderness Committee — have sued the Department of the Interior and the US Fish and Wildlife Service over their Biological Assessments and Incidental Take Permits related to the ACP.

Co-owned by Dominion Energy and Duke Energy, Atlantic Coast Pipeline, LLC, is not a defendant, but has intervened in the case.

Incidental Take Permits allow for a certain number of endangered or threatened species to be “harassed” or killed during the construction of a project. Although the four species mentioned in the case haven’t been found along the North Carolina route, more than two dozen, rare, threatened or sensitive species live in the forests, streams and rivers here. Among them are the Neuse River Waterdog, the Green Floater, Rafinesque’s Big-Eared Bat, Red-Cockaded Woodpecker, the Atlantic Pigtoe and the Carolina Fatmucket.

The project has been the target of several successful legal challenges, many of them based on federal permits and decisions that the court has found substantively lacking.

Atlantic Coast Pipeline spokesperson Aaron Ruby issued a statement on the project’s website, saying that the court’s stay should not extend to North Carolina.

We respectfully but strongly disagree with the court’s decision. We believe this stay is not only unwarranted, but overly broad. We are filing a motion for emergency clarification on the scope of the court’s decision.

We do not believe there is any basis for the court to stay the entire Biological Opinion, which authorizes all 600 miles of the project. The issues in this case involve a much narrower scope of the project covered under the Incidental Take Statement – only four species and roughly 100 miles in West Virginia and Virginia. We will have more clarity on the scope of the court’s stay and its impact on the project when the court responds to our motion.

 

Environment

While Tropical Storm Michael deluged NC, Resource Institute rained money into Moore, Berger campaigns

 

The Atlantic Reefmaker is constructed of concrete and stone. Early versions of the wave breaking technology were square; now they are octagonal. (Photo: Atlantic Reefmaker website)

In October, while North Carolinians were battening down the hatches for the second major storm in a month, $31,000 flowed into the coffers of five lawmakers from a nonprofit organization keen on drumming up business along the coast.

With just a few weeks left until the general election, executives with the Resource Institute and Atlantic Reefmaker, a for-profit company and contractor, contributed to Sen. Pro Tempore Phil Berger, House Speaker Tim Moore, Sen. Harry Brown and Reps. Kyle Hall and Dana Bumgardner.

ContributorCandidateAmountDate
Charles AndersonSen Harry Brown1500October 9, 2018
Michael SmithSen Phil Berger1000October 12, 2018
Michael SmithSen Harry Brown1000October 17, 2018
Darrell WestmorelandSen Phil Berger4000October 12, 2018
Darrell WestmorelandRep Dana Bumgardner1000October 8, 2018
Darrell WestmorelandRep Tim Moore5000October 11, 2018
Darrell WestmorelandRep Kyle Hall5000October 12, 2018
Stephanie WestmorelandRep Kyle Hall5000October 12, 2018
Shawn WilkersonRep Tim Moore3750October 11, 2018
John HuttonRep Tim Moore3750October 11, 2018
31000

When added to previous campaign contributions, these and other donors have given nearly $150,000 to just a handful of powerful Republican lawmakers since 2016.

It’s unclear why the financial piling on was necessary. As Policy Watch reported in July, the Resource Institute gave $116,000 to various political campaigns, including Moore, Berger and Hall. After two years of giving, the money finally paid off: Lawmakers inserted into the budget bill a $5 million grant to the Resource Institute — pass-through money from the state Department of Environmental Quality, which was surprised by the appropriation.

The funding was intended for an ill-defined beach nourishment study, even though the Resource Institute, 250 miles inland, had never done that type of work

Now, though, the Hurricane Florence Disaster Relief Bill, which passed last week, has narrowed the scope of work from the coast in general — which, judging from a tepid reception by shoreline protection officials, was a non-starter — to Topsail Island in Pender County.

The idea of Topsail had been floated this summer when Darrell Westmoreland of Atlantic ReefMaker told Policy Watch that the company wanted to deploy this relatively new technology to stabilize the New River Inlet. Developed in Florida, the Reefmaker is a stack of molded concrete trays set with rock, such as granite. They are constructed on fiberglass pilings installed on the sea floor or riverbed. The purpose is to break up wave energy, while allowing water, fish, sand and other aquatic life to pass through.

Atlantic Reefmaker recently conducted a full-court press on the Department of Transportation board. On Nov. 7, Randy Boyd, an engineer with the firm, provided more details on the technology. Some board members seemed impressed, but others had questions about its longevity.

“How long did they last in Florida?” asked one board member. “I don’t know,” replied Boyd. “But they’ve been there quite a bit of time.”

UNC Wilmington is under contract to monitor the Reefmaker’s performance, Boyd told the board.

Read more

Environment

This Week in Pollution: An historic penalty against Chemours, plus more troubling science about PFAS

The myriad ways perfluorinated compounds can enter the body. PFAS, of which there are thousands, are found in household products, firefighting foam and in industrial waste that is then discharged into the environment. (Slide: SciLine media presentation)

It was a big week for PFAS, although considering how widespread and durable they are in the environment, every week is big for industries’ estimated 4,700 perfluorinated compounds.

First, DEQ explained in more detail its proposed consent order, developed in conjunction with Cape Fear River Watch, against Chemours for its profligate discharge of PFAS, such as GenX, into the Cape Fear River. We’ve annotated the 40-page proposed consent order at this link and below. Click on any yellow box to read the context and analysis for that section.

DEQ announced the proposed order on Thanksgiving Eve at 7:30. Fortunately, Policy Watch was not baking pies, so had time to immediately summarize the key points.

The highlights include a $12 million penalty, plus $1 million in investigation costs, that DEQ assessed on the company for its decades of violations. It is the largest fine levied by DEQ for pollution at a single site. Under Gov. McCrory’s administration, the agency had fined Duke Energy $25 million after the 2014 coal ash disaster on the Dan River, but the amount was later reduced to $6.6 million. On a media call, DEQ officials declined to explain how they calculated the $12 million figure, because that information could be subject to attorney-client privilege. (But as Travis Fain of WRAL pointed out during the conference call, under these arrangements, clients, such as DEQ, can voluntarily discuss information, but not the attorneys.)

The company’s discharge permit, which had been up for renewal, is on ice, indefinitely.

In the proposed order, Chemours denies committing any violations, which is boilerplate language for these types of documents.

The proposed order resolves any past or current alleged violations, but as Assistant DEQ Secretary Sheila Holman said yesterday, the language “leaves the door open for future enforcement actions.”

Chemours must pay for alternate water supplies for affected households whose private wells tested above the state’s health goal of 140 parts per trillion: connection to a public water line, whole-house filtration systems, or under-sink reverse osmosis systems. For households that choose public water, Chemours is required to pay their water bills — up to $75 a month — for 20 years. “No one should be drinking water with PFAS above 10 parts per trillion,” Holman said.

The proposed consent order is open for public comment through Friday, Dec. 21. Submit comments electronically to comments.chemours@ncdenr.gov or mail them to Assistant Secretary’s office, re: Chemours Public Comments, 1601 Mail Service Center, Raleigh NC 27699-1601.

 

Consent Order 11212018 (Text)

 

Read more