Farm bill targets nuisance suits against pork industry

"They have all the rights, and we have none," says a woman who lives next to a hog farm.

Posted Updated

Travis Fain
, WRAL statehouse reporter
RALEIGH, N.C. — Legislation that would make it harder to win lawsuits against hog and other livestock farms in North Carolina, like the suit that hit pork giant Smithfield Foods with a $50 million verdict in April, has cleared multiple committees and is rolling toward the Senate floor.
Senate Bill 711 is the legislature's annual farm bill, and it has a number of provisions, including one to forbid soy, almond, coconut and other plant-based milk suppliers from labeling their products "milk" in North Carolina and another to save farmers money on natural gas. But it's the legislature's second move in as many years to tinker with state nuisance laws, as more lawsuits against Smithfield's Murphy-Brown division move through the courts, that generated debate Wednesday.

"Here we go again," said Elsie Herring, a plaintiff in one of many suits over the odors and other issues affecting homes near industrial hog farms. "They have all the rights, and we have none."

Bill supporters said they're trying to strike a balance between property rights and agriculture and to save a massive slice of the state's economy from being sued, in Agriculture Commissioner Steve Troxler's words, "right out of the state."

"These lawsuits that are happening can put all of us out of business," Troxler said.

Sen. Brent Jackson, R-Sampson, a farmer himself and the bill's lead sponsor, made the same argument. In a reminder of the debate over last year's changes, Jackson said his new bill won't be retroactive, affecting lawsuits already filed. But he also stood against an amendment Sen. Warren Daniel, R-Burke, proposed to spell that out, saying it wasn't needed because the bill's implementation date is already in the future.

After some debate, Daniel withdrew his amendment.

Last year's bill initially was retroactive, but was amended to take that out before passage. Smithfield's legal team later argued, unsuccessfully, that the bill as passed was still retroactive.

This year's bill says farming activities are presumed not to be a nuisance unless a plaintiff shows that the farm is out of step with state regulations and that farm procedures are different from what is "generally accepted and routinely utilized" by others in the region.

Jackson said this language will allow the courts to punish bad actors. Attorneys on the other side of the issue said the language protects widespread bad practices, such as open waste lagoons and spray fields that apply waste to fields but also cause it to drift onto neighbor's homes.

"If, in your region ... everybody's doing bad practices, then nobody is," said Paul "Skip" Stam, a former Republican state representative from Apex who visited the legislature Wednesday to oppose the bill.

The bill would also step up a plaintiff's legal burden of proof, from a "preponderance of evidence" to "clear and convincing evidence." Michelle Nowlin, a Duke University law professor who has pushed back against the pork industry for years in North Carolina, called the legislation "a radical change."

The bill would also say no agricultural or forestry operation could become a nuisance due to "changed conditions" outside its borders once it's been in operation more than a year. This, supporters said, is meant to keep people from moving next to a farm, then complaining and filing suit. The bill also has new notice requirements on property sales, requiring disclosure when homes are within a half-mile of certain farms.

The bill defines "changed conditions" as including "a change in ownership, occupancy, or the use of the property that is affected by the alleged nuisance."

Herring moved to her parents' farm, which has been in the family since the 1890s, in the 1990s to care for her elderly mother and a brother with Down syndrome. This was well after the farm next door was established.

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