Hog country in eastern North Carolina can be beautiful and serene. Pastoral scenes with uncluttered horizons, neat farmhouses, corn fields swaying in the breeze, and livestock quietly grazing – the perfect place to sit on the back porch and sip some sweet tea. But if the wind shifts just right – and it often does – powerful odors from farms can force neighbors to take refuge indoors.
Farmer vs. neighbor: An age-old problem and the subject of legal disputes dating back centuries. Private nuisance is a legal precept, a bedrock principle of tort law, providing a remedy for someone whose neighbor uses his property in an unreasonable, unwarranted, or unlawful manner that interferes with his neighbor's enjoyment of his property.
"If you were to go back and read Blackstone's commentaries and laws of England, which was the textbook, essentially, of English common law that our founding fathers would have used, you would see in there a quote that says, you know, a person who keeps a hog or other noisome animal so close to his neighbor as to incommode him shall be liable as a nuisance," said Duke University Law Professor Ryke Longest.
Longest directs the university's Environmental Law and Policy Clinic. He also spent 14 years as a special deputy attorney general with the North Carolina Justice Department's environmental protection section – which included taking injunction actions against hog farms.
North Carolina's General Assembly passed a law recently – and overrode Governor Roy Cooper's veto – that seriously limits the ability of people who seek legal redress for private nuisances created by forestry and agricultural operations, such as large-scale swine and poultry farms.
The law could have serious implications for residents of eastern North Carolina counties like Bladen, Duplin, Pender, and Sampson, mostly rural areas with sizable African-American populations.
These areas are home to many farms, including large-scale hog-raising operations. Hog producing in North Carolina really took off in the 1990s when growers swapped the declining tobacco crop for the more profitable business of raising swine.
One of the things that fueled the growth in hog producing was the advent and standardization of the CAFO system. CAFO stands for Confined Animal Feeding Operation.
Around 700 hogs each are held in long, low-lying barns, with 24 to a pen. The hog's manure drops through slats in the barn floor. Water then flushes the waste into lagoons filled with reddish brown liquid, which then is sprayed as fertilizer onto crops. The CAFO system helped control diseases such as trichinosis that kept American growers from being able to export hogs. When the hog export business expanded, companies like Smithfield Foods contracted with area growers to raise the pigs and promised farmers a steady income without the uncertainties of raising animals for the open market.
Ronald Ezzell is a contract farmer for Smithfield Foods, now a subsidiary of the Hong Kong-based W.H. Group Ltd. Ezzell houses between 5,000 and 6,000 hogs in eight barns on his Duplin County farm.
"The company really keeps us from really having a whole lot of ups and downs because they just put the hogs in there and you got a contract and they pay you by the head that you sell out of the house so, normally, it's pretty level," Ezzell said.
Law Professor Ryke Longest said the establishment of the CAFO system led to exponential growth in the number of hogs in North Carolina, even though the number of swine farms actually went down.
From around 1983 to 1997 the number of hog farms dropped from around 20,000 to below 3,000 while the number of hogs went from a little more than 1 million to today’s figure of around 10 million.
That change, and the lagoons used to treat the increased waste, did not go unnoticed by longtime residents down east.
Devon Hall, Sr., is 62 and has lived in the Duplin County town of Warsaw all his life.
"There's no place I’d rather live than here in Duplin County. Where I live, here, I’ve got two sisters and two brothers within hollering distance of where I live," Hall said.
Hall's house sits 300 yards from where he was raised. Behind his neatly tended home and green yard is a long picnic table made out of old railroad ties. The table sits at the base of large shady tree with weeds and bushes growing up and around it. Hall said the table has not been used in years. When asked why, he said: "Hey, nobody want to have a cookout because of the odor.”
Hall's property abuts a crop field that belongs to a large-scale Smithfield Foods hog farmer. Liquid from the farm's lagoon is sprayed to fertilize the crops and sometimes drifts – along with the odor – over to Hall's yard. Hall said losing the ability to hold traditional family gatherings on his property is significant and upsetting.
In the Pender County town of Watha, Terry "Pap" Adams has also had to alter his routine because of a neighboring Smithfield farm. Adams works on cars in his spare time behind his double-wide in a mobile-home park where he has lived with his wife and children for 20 years.
Adams' yard is separated from a hog-farm spray field by only a line of trees and a dirt road.
"I'll be out here working on my car and sometimes it would be so bad I'd have to go in the house because it'd be like misting on you," Adams said.
Adams said he would have put picnic furniture out back if not for the spraying. He described the lagoon mist as "reddish-looking gunk" that had a noticeable greasy ring around it when the drops landed on his black car.
"Me and my wife, sometimes, when the wind's blowing right, you can’t even sit on the porch because of the smell,” Adams added.
The new law means residents like Adams and Hall can not seek more than fair market value of their homes in a private nuisance lawsuit, which, without the financial incentive, makes it unlikely a lawyer would take on such a case.
State Representative Jimmy Dixon, a primary sponsor of the legislation, said predatory lawyers are the problem.
"You're sitting up on your front porch one day and Jimmy Dixon's your neighbor and you and I have been friends for 15 or 16 years – so a shiny car pulls up in front of your house, gets out, comes up and introduces himself to you and says, 'Aren't you tired of Jimmy’s flies? Aren't you tired of Jimmy's odors? We might be able to get you $90,000,'" Dixon said.
Dixon is a Duplin County Republican, a farmer and chairman of the House Agriculture Committee. He is a recipient of campaign funds from Smithfield Foods but so are some Democrats who opposed the legislation.
Smithfield Foods has been sued by hundreds of North Carolina plaintiffs for private nuisance. An amendment to House Bill 467 made sure the current litigation would not be affected by the new law. The lawsuit is pending.
The question going forward is: What happens to people who live next door to not just hog farms, but any agricultural or forestry operation?
Michelle Nowlin, a clinical professor of Environmental Law at Duke University, said the new law is too broad and vague about what industrial and agricultural activities it protects.
"We're talking about an incredible restriction of people's, a scaling back of, individual property rights at the same time we're talking about expanding the universe of facilities that are protected and I think that that's a real dangerous slope that we're on that the General Assembly has not adequately addressed," she said.
Nowlin said people in the environmental advocacy and legal community might mount a legal challenge to the constitutionality of the new law's cap on nuisance damage awards.
Hall, the Duplin County resident, said he thinks that would be a good idea.
"How is it you can draft a bill that allows one person to harm another and that harmed individual can't sue for damages?" Hall asked, rhetorically.
But hog farmer Jeff Spedding said he thinks disputes should be worked out neighbor-to-neighbor, not in the courts.
"With, you know, growing economies comes change and sometimes it hits a little too close to home and, you know, we all have to just be willing to go roll with the punches from time to time," he said.
All indications are the hog-farm spray lagoons are not going anywhere anytime soon. After a series of disasters in the late 1990s, including a major breach of a hog lagoon and flooding from Hurricanes Fran and Floyd, Smithfield Foods and the State of North Carolina worked out an agreement whereby the company put up $15 million to fund research into an alternative waste disposal method.
Under the terms of the agreement, however, Smithfield was not obligated to invest in an alternative that was not found to be cost effective. More than 20 years down the road, no affordable alternative has been identified.
And so, the intractable tension between farmer and neighbor lives on.