N.C. Court Chooses to Restrict Local Property Rights of Neighbors Besieged by Industrial Hog Waste
By: Waterkeeper Alliance
Ruling Draws an Appeal From Civil Rights and Environmental Groups Challenging Special Legal Protections for Industrial Hog Operations
Individuals suffering negative recurring health and environmental impacts from open-air cesspits containing hog waste like feces, blood, urine, bone and other animal fluids, cannot sue industrial swine operations for nuisance, after a Dec. 23, 2020 decision from a three-judge Wake Superior Court panel dismissed constitutional challenges to the 2017 and 2018 amendments to North Carolina’s “Right to Farm” Act.
The plaintiffs in the constitutional challenge –the North Carolina Environmental Justice Network (NCEJN), Waterkeeper Alliance, and the Rural Empowerment Association for Community Help (REACH) represented by the Lawyers’ Committee for Civil Rights Under Law—appealed that decision to the N.C. Court of Appeals on Tuesday.
“While we are extremely disappointed in the superior court’s failure to uphold the North Carolina Constitution, we appeal to the higher court to ensure justice is served,” said NCEJN’s Naeema Muhammad. “We’ve been fighting the power this industry has over our lawmakers for a long time, so we are not afraid to hold out as long as it takes.”
“As individuals who have to live near these facilities, we don’t have money or power and must endure the stench and flies and buzzards and waste that comes into our homes, yards and communities,” said REACH’s Devon Hall. “But we’ve come together to ask the courts for justice: we believe the Constitution protects our private property rights the same as it does those of people with wealth and power.”
In the wake of lawsuits and multi-million-dollar verdicts against hog giant Smithfield Foods in favor of long-suffering neighbors of industrial hog operations (IHOs) in Eastern North Carolina for the adverse health, environmental, and quality of life impacts those operations cause, the North Carolina legislature adopted House Bill 467 (2017) and Senate Bill 711 (2018). These laws upended state nuisance law and undercut fundamental property rights to benefit the industry, giving it license to disregard harms it causes to neighbors. In 2019, NCEJN, REACH and Waterkeeper Alliance challenged those laws under three North Carolina constitutional provisions.
For decades, neighbors of IHOs, who are disproportionately communities of color in North Carolina, have been subjected to stench, noxious gases, particulate pollution, flies, buzzards, adverse health effects, and environmental damages stemming from these operations. Smithfield’s continued refusal to end its use of hog waste “lagoons” and sprayfields, and its failure to address other methods that harm those living within at least three miles of its operations, led to a 2013 lawsuit against Smithfield Foods, Inc.’s pork production subsidiary, Murphy-Brown, LLC for nuisance. Five separate juries found the industry liable and awarded millions in damages to the plaintiffs. This past November, a decision in the United States Court of Appeals for the Fourth Circuit affirmed that Smithfield is liable for compensatory and punitive damages to neighbors of a hog farm it controlled.
In response, the N.C. General Assembly immunized IHOs from any legal liability. HB 467 eliminated plaintiffs’ ability to allege nuisance from agricultural operations to recover the range of traditional common law damages available to all other nuisance plaintiffs, such as damages for annoyance and mental or physical health conditions caused by the stench and pollution. SB 711 went even further, adding additional restrictions to even bringing a nuisance lawsuit and eliminating such claims against IHOs, insulating even negligent operations from liability, and severely limiting the availability of punitive damages. In its December 23 ruling, the panel of Superior Court judges rejected plaintiffs’ claim that the legislature violated the North Carolina Constitution’s guarantee of fundamental property rights, due process, and the right to a jury to determine compensatory damages in nuisance actions, as well as the constitutional limit on the General Assembly’s power to pass “special” or private laws concerning nuisance.
“Laws should protect North Carolinians from harm, not strip them of their constitutional rights,” said Daniel E. Estrin, Waterkeeper Alliance’s general counsel and advocacy director. “The courts have repeatedly ruled in favor of North Carolinians and their right to live free from dangerous industrial hog pollution. We won’t give up on this fight.”
“We believe that the appellate court will overturn this erroneous decision and find that the General Assembly exceeded the permissible scope of its authority with these laws, which violate the fundamental right to use and enjoy one’s land, one’s home,” said Elizabeth Haddix, managing attorney for the Lawyers’ Committee for Civil Rights Under Law. “Giving free license to one industry to unreasonably and substantially interfere with that right is unacceptable.”