Barbeque in danger: litigation floods NC hog farming industry

As one of the largest moneymakers in NC, the hog farming industry is facing a great amount of new litigation, which could affect its future.

North Carolina has a long reputation as both an agricultural state and a state that prides itself on barbeque.  Hog farming is central to both of these, but the hog farming industry has recently become the center of numerous lawsuits.  Hog farming, or the raising of hogs for consumption, is a part of the larger pork production industry that consists of six separate stages: research and development, hog farming, meat processing, finishing and packaging, product distribution, and retail.  While North Carolina farms participate in all stages of the pork production industry, hog farming brings in the most revenue for North Carolina.  In fact, according to the most recent Census of Agriculture, NC is the second largest pork producer in the United States, bringing in $2.9 billion dollars in 2012.  That same year, Duplin County, NC ranked first in the nation in total hog and pig sales, bringing in $614 million, or 3% of the total U.S. sales.  Think about that: a single county in North Carolina accounts for 3% of the total U.S. hog and pig sales.  That is a lot of bacon.  Despite being the second largest producer in the U.S., North Carolina still experienced a decline of $231 million in sales since the last Census of Agriculture in 2007, a fact which could be attributable to the massive amounts of litigation North Carolina’s hog farming industry now routinely faces.

The majority of this litigation stems from the use of hog farming lagoons…

The majority of this litigation stems from the use of hog farming “lagoons”, or man-made ponds built to store hog waste for later use as fertilizers.  The waste from the lagoons is often sprayed onto fields containing crops using large sprinkler-type systems, which allow farmers to save money by using their own fertilizer.  While this practice may be beneficial to farmers, numerous studies have shown that hog farming lagoons can have a significant, and sometimes devastating impact on the environment.  Last September, the deluge of rain that accompanied Hurricane Matthew turned some North Carolina communities into ponds, which in turn mixed with at least 14 flooded hog lagoons.  As the communities rebuilt, environmental advocates and state officials discovered areas affected by the wastewater, which can carry harmful bacteria such as E.  Coli and salmonella.

Creating regulations that allow hog farmers to continue economically feasible waste disposal practices while also protecting the environment has been a challenging task.  As an agriculturally driven state, the North Carolina legislature has historically been lenient with environment regulations regarding hog farming practices.  But when the number of hog farms jumped from around 2.6 million in 1988 to over 8 million in 1997, hog waste storage became a critical issue for many environmental groups.  In 1997, the General Assembly enacted the Clean Water Responsibility Act, which placed a moratorium on the construction of new hog lagoon farms and prevented existing large farms from expanding their hog lagoon practices.  The moratorium was made permanent in 2007; however, the legislation had no effect on the more than 4,000 hog waste lagoons in existence before then, many of which remain in active use.  As one can imagine, the existing hog lagoons raised a lot of stink.

The majority of hog farming litigation concerns nuisance actions by private citizens alleging that hog farming companies “knew or should have known, that its actions and omissions were causing and contributing harm” to them.  While hog farms have received complaints related to nuisances such as odors and flies for decades, only in the past few years has the hog farming industry become the focus of lawsuits alleging the violation of civil rights.

The complaint was filed under Title VI of the Civil Rights Act of 1964 and the U.S. Environmental Protection Agency’s regulations…

In September 2014, the nation’s largest environmental law organization, Earthjustice, as well as the UNC Center for Civil Rights, filed a complaint on behalf of the North Carolina Environmental Justice Network, the Rural Empowerment Association for Community Help, and the Waterkeeper Alliance, alleging civil rights violations stemming from hog farming practices in North Carolina.  The complaint was filed under Title VI of the Civil Rights Act of 1964 and the U.S.  Environmental Protection Agency’s regulations, based on a 2014 decision by the North Carolina Department of Environment and Natural Resources (DENR) to renew a general permit allowing industrial swine facilities in NC without enacting measures to protect minority groups “living and working near the swine facilities.”

The plaintiffs specifically allege that “the permitted swine facilities are located disproportionately in African American, Latino, and Native American communities” and that these groups “disproportionately bear the burden of the General Permit’s failure to control the waste as the permitted swine facilities.” Because DENR is a department of the State of North Carolina that receives EPA grants and funding, its activities must comply with Title VI nondiscrimination requirements in implementing all of its programs in order to continue to receive federal funding.

In October 2016, after more than two years of investigation of the complaint by the EPA, organizers went to Washington, D.C. to deliver to officials a petition with over 90,000 signatures claiming NC’s Department of Environmental Quality violated their civil rights by allowing the industrial hog industry to pollute their air and water.  The EPA’s External Civil Rights Compliance Office finally answered these concerns on January 12, 2017, in a 25-page letter condemning North Carolina for not having a federally-required anti-discrimination policy for its hog farming practices, as required by the Civil Rights Act, and for not requiring hog farmers to use better practices to reduce pollution.  In response to the letter, the NC Pork Council pointed out that the “industry is heavily regulated in North Carolina, with a ban on constructing new farms, annual inspection, mandatory setbacks from neighbors, and prohibition on discharging waste into the state’s waters.”

A 2000 study… found that hog operations were approximately 5 times more common in areas where there was the highest concentration of poor minorities…

Claims of this type of “environmental racism” are not new in North Carolina.  A 2000 study by researchers at the UNC-Chapel Hill School of Public Health found that hog operations were approximately 5 times more common in areas where there was the highest concentration of poor minorities than in majority white areas.  The study also pointed out that hog industry operations run by corporate producers were more concentrated in minority areas than operations run by independent growers.

According to the most recent Census of Agriculture, 83% of all hog farms in the U.S.  are primarily owned by families or individuals, which accounts for 41% of all sales.  In contrast, corporations and partnerships only own a combined 15% of all hog farm operations, but their work accounts for a whopping 57% of all sales in the U.S.  This data reflects a tragic truth—family farms are often at the center of hog farming litigation, but unlike their corporate counterparts, these families often do not have the deep pockets to pay off litigation fees.  Many hog farmers formerly tended crops, such as tobacco, and turned to hog farming in the last decade to make more money to support their families, only to met with long and expensive legal battles.  In situations where farmers contract to raise hogs for corporations on a contractual basis, farmers are the ones who must foot the legal bill the majority of the time.  The result is a vicious circle for small farmers; they must work to pay off the legal fees stemming from their work.  In one instance, a farmer and his wife were even forced to file for bankruptcy as a result of legal costs incurred from defending a years-old lawsuit against their hog farm by a nonprofit environmental organization.

These programs funded a research program at North Carolina State University, which has been successful in creating several safer hog waste-disposal methods.

The sad reality is that there are solutions to the hog waste problem, but family farms often do not have the resources, either personally or from the corporations, to implement them.  In 2000, then–Attorney General Roy Cooper entered into agreements with Smithfield Foods and later Premium Standard Farms, in which the two companies “consented to fund development of environmentally superior waste management technologies for use on North Carolina swine farms owned by the companies.” These programs funded a research program at North Carolina State University, which has been successful in creating several safer hog waste-disposal methods.

Even with new technology that greatly reduces the environmental impact of hog farming, the future of hog farming litigation is uncertain.  As the hog farming industry moves towards fewer, larger farms, many family farmers may find themselves replaced by their corporate counterparts who are in a much better financial position to fend off troublesome nuisance complaints, or even more intricate civil rights cases.  Hog farming litigation could also see significant changes as a result of the Trump administration’s position on environmental issues; as reported by the New York Times, “Trump has repeatedly criticized the EPA for what he calls a string of onerous, expensive regulations that are hampering businesses.” This position has certainly raised concerns in North Carolina, as Research Triangle Park is home to the EPA’s second-largest office in the country, employing more than 2,000 people. With the future of the hog farming industry uncertain, it is more important than ever to implement programs that help hog farmers transition to more to environmentally stable practices.

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About Lizzie Yelverton, Editor-in-Chief (10 Articles)
Lizzie Yelverton is a third year law student and serves as Editor-in-Chief for the Campbell Law Observer. She grew up in the small farming town of Eureka, NC, before moving to Raleigh to attend North Carolina State University. In 2015, Lizzie graduated from NC State with a Bachelor of Arts in English with a minor in Philosophy. The year following her first year of law school, Lizzie worked as an intern for Senator Floyd B. McKissick, Jr. in the North Carolina General Assembly. Lizzie is the Public Relations Chair for Women in Law, as well as a member of the Student Animal Legal Defense Fund and the Campbell Law Innocence Project. Over the summer, Lizzie served as a law clerk at the law office of Baddour, Parker, Hine, & Hale, P.C.