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August 10, 2018
A hog confinement barn (Photo credit: Wikimedia)
For decades, residents of North Carolina have endured swarms of flies, nausea, and headaches triggered by nearby open air lagoons filled with effluent from hog farms. Horror stories abound in these counties: feces sprayed onto fields getting blown onto houses, windows boarded up to escape the smell of thousands of gallons of hog waste and residents feeling trapped inside their own homes. These stories are disturbingly commonplace. Local communities have long campaigned to change industry waste disposal methods, meeting resistance from politicians and the agriculture industry.
The word “farm” still evokes bucolic small family farms, but a recent lawsuit on the issue of hog waste paints a different picture of modern agriculture. Hog farming is a vertically integrated industry, meaning that those raising the hogs do not own them; they produce them as part of a contractual agreement with larger companies, a system referred to as contract farming. The lawsuit targets the company that owns the hogs (Murphy-Brown LLC) and asserts that the responsibility for establishing and abiding by responsible waste management lies with the owners of the hogs, not the farmers who manage them.
A North Carolina jury heard the case in April and initially ordered Murphy-Brown LLC to pay more than $50 million to the plaintiffs in damages. That amount was reduced to just over $3 million by a North Carolina law limiting the punitive damages paid in cases like this. The watershed case is representative of the broader legal debate between farmers, industry, and communities surrounding right-to-farm laws and public nuisance complaints.
Around two dozen other lawsuits from neighbors of hog farmers across the country are scheduled to be heard in the coming months. Families and community members have successfully argued in court that nearby hog farms are nuisances that reduce their ability to enjoy the land they own. Still, WH Group’s Smithfield Farms, the largest hog producer in the country ‒ and owner of Murphy-Brown ‒ has framed these lawsuits as an attack on North Carolina’s agriculture, and lawmakers recently passed a law protecting these industrial farms from further nuisance lawsuits.
The hog industry is a public health issue that has been illuminated by the work of determined activists and academics. The system of waste disposal on large, industrial farms leads to health concerns for local residents including asthma, high blood pressure, nausea, and exposure to antibiotic-resistant bacteria. In North Carolina, these impacts fall disproportionately on people of color.
Environmental Health and Justice
The pork industry in North Carolina came under significant scrutiny in the 1990s, right as contract farming was being established as the dominant form of hog production in the state. Having grown to fill a void left by the shrinking tobacco industry, the hog industry’s shift to contract farming restructured North-Carolina agriculture as the state shifted towards industrial scale farms. In contract farming, farmers take out large operating loans from corporations to build the facilities required for rearing pigs as specified by the corporation. The farmers are then contracted to raise the company’s pigs and are left to deal with the waste.
Strapped with the debt assumed in order to set up their farms, many farmers lose money or make miniscule profits. And, a federal law — that many have long sought to fix — bars them from suing producers for unfair or anti-competitive practices. For many hog and poultry farmers living in economically depressed areas, contract farming remains the best option for work despite its environmental and quality-of-life ramifications.
Smithfield Farms defends their waste management system as “state of the art.” Their lagoons collect feces, urine, blood, and other waste produced by the pigs. When they threaten to overflow, their contents are sprayed onto nearby fields as fertilizer. As a result, people living nearby are at higher risk of suffering from asthma, high blood
pressure, and nausea. When heavy rainfall occurs, these lagoons are prone to flooding and filling the surrounding area with excrement.
Additionally, excess applications of antibiotics to promote weight gain in livestock have been found to produce antibiotic-resistant bacteria, which have in turn been found in the air surrounding hog facilities and in rodents and geese that come into contact with the waste lagoons. A study found that people living near hog waste facilities have an elevated risk of being exposed to antibiotic-resistant forms of staph infections.
These environmental health hazards have landed primarily on minority communities. A study published by the University of North Carolina found that communities predominantly made up of people of color are far more likely to be exposed to hog waste than other communities. The study excoriated the industry for its impact on public health. The concentration of environmental hazards in communities of color is in keeping with patterns of environmental racism and injustice in which companies and governments exploit the vulnerability of marginalized communities to dump the dirty elements of production on them.
Grassroots organizations and activists have been persistent in their fight against these patterns of discrimination, and this year’s lawsuits hopefully represent a milestone for environmental justice. However, North Carolina’s recent law protecting groups like WH Group and Smithfield Farms from lawsuits is a huge blow against those efforts.
Legal Overview and Implications
The flurry of nuisance lawsuits against multinational, agricultural corporations represents a long-brewing fight over “right-to-farm” laws. These laws, present in all 50 states, protect farms from nuisance lawsuits by placing the burden of proof on neighbors to demonstrate that a farm is creating a public nuisance. The original intent behind right-to-farm laws was to allow family farms to operate even when new neighbors move into the area. However, an increase in “factory farms” is turning right-to-farm laws into de-facto “right-to-commit nuisance” laws.
Many claim that right-to-farm laws are effectively “right-to-commit nuisance” or “right-to-pollute” laws that protect large, corporate farms at the expense of the surrounding communities. A common provision in these laws allows farms to change their agricultural practices without the consent of the surrounding community. These changes ‒ such as adding more livestock or trying new waste disposal methods ‒ can have significant environmental health impacts.
A lack of clarity and enforcement at the federal level exacerbates the conflict between right-to-farm and public nuisance laws. There are two federal laws that involve the monitoring of agricultural waste and emissions: the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA). Yet, in practice, neither of these laws are enforced in the agricultural sector. These two laws empower the Environmental Protection Agency (EPA) to collect data on pollutants, including those from agricultural operations. But for about ten years now, the EPA has not enforced farm emissions reporting under CERCLA. This was set to change, as the U.S. Court of Appeals compelled the EPA to enforce agricultural emissions reporting about a year ago. However, the 2018 Omnibus Bill (H.R.1625) repealed the CERCLA emissions reporting requirements for farm waste, and acting EPA Administrator Andrew Wheeler signed a new rule that implements the repeal. While the Congressionally-mandated moratorium on air emissions reporting may give the EPA and farmers more time to find methods that accurately measure air emissions (especially for dangerous emissions, such as ammonia and hydrogen sulfide), local communities will continue to suffer from the effects.
Despite the absence of reporting requirements, the agricultural industry is on notice. Recent lawsuits challenge the industry to confront its negative impact on public health and its negative environmental impacts. With the floodgates open for more lawsuits, there is pressure on the industry to confront its adverse effects on public health and the environment.
Although the federal government does not require farms to report their emissions, there are still federal laws that aim to protect communities from dangerous levels of farm waste. For example, the Clean Water Act requires concentrated animal feeding operations (CAFOs) to obtain a permit when they release large amounts of waste into a natural water source or spread a certain quantity of manure across their fields. The Clean Air Act also regulates CAFOs that emit large amounts of air pollutants. Yet, both farmers and the EPA are unable to accurately measure farm emissions, which affects the EPA’s implementation of this law. Nevertheless, the Clean Water and Clean Air Acts are federal regulations that could be used to protect communities from the harmful health effects of industrial farms.
Without clear federal guidance, the fight over right-to-farm versus public nuisance laws has moved to the states. The North Carolina legislature recently passed the North Carolina Farm Act of 2018 (SB 711), which strengthens the state’s right-to-farm law, making it extremely difficult for individuals to sue farms and agricultural corporations. This bill was initially vetoed by Governor Roy Cooper, who explained: “While agriculture is vital to North Carolina’s economy, so property rights are vital to people’s homes and other businesses.” But the North Carolina legislature recently overrode the Governor’s veto, enacting SB 711 into law.
Many other agricultural states, along with North Carolina, are reckoning with this conflict between communities and modern farming practices. Lawsuits similar to Murphy-Brown LLC are underway across the country, including a lawsuit against a hog farm in Pennsylvania and another against a hog farm in Minnesota. The growing number of lawsuits brought against these large agricultural corporations may be a turning point, with greater emphasis being given to public health.
Biogas – Turning Hog Waste into Resources
A manure storage cover for a biogas system (Photo courtesy of Flickr user Manure)
Biogas technologies turn organic wastes, including manure, into energy and compost. When manure is turned into biogas, the smells, poor health effects, and methane emissions associated with hog farms are drastically reduced. At a hog farm using anaerobic digestion, hog manure is hosed out of hog pens and into on-site ponds. Bacteria break down this manure in the digester, producing methane gas in the process. The digester captures the gas by placing an inflated rubber covering over the manure lagoons and funneling it into a separate compartment, where it can be upgraded to pipeline quality renewable natural gas, or burned on site for electricity. Other valuable co-products, including fertilizers and compost, are also produced in the process. This is a win-win-win solution: it reduces the harmful health and environmental impacts of hog farms, prevents methane ‒ an extremely potent form of greenhouse gas ‒ from entering the atmosphere, and also creates a form of renewable energy.
Unfortunately, few state policy mechanisms exist to support the development of these systems -- and to protect the health and livability of nearby communities. In North Carolina, electricity utilities are exploring the use of digesters, as the state calls for 0.2 percent of its electricity to be derived from hog waste by 2023. But utilities in the state have struggled to even reach this paltry level, and a recent decision by the state’s Utility Commission puts the biogas industry in jeopardy in the state. To dramatically reduce the issues associated with hog and other manures created by animal agriculture, we must rapidly invest in anaerobic digestion systems and support various policy drivers for the sector, as recently highlighted at an EESI briefing. These include mechanisms at the state level, such as including anaerobic digestion in state-level Renewable Portfolio Standards, and at the federal level, such as providing tax parity for biogas, and providing certainty for biogas’s future under the Renewable Fuel Standard.
Authors: Maria Pfister and Tim Manning
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