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Clean Air vs. Dirty Hogs
A modern David versus Goliath confrontation is now unfolding in rural North Carolina. This past April a local jury awarded 10 plaintiffs each $75,000 in actual damages and $5 million in punitive damages against the pork producer Murphy-Brown LLC, a subsidiary of Smithfield Foods, which was acquired by China’s WH Group in 2013. The plaintiffs were able to prove that the continuous and deliberate actions of the hog farmers caused them to suffer “episodes of noxious and sickening odor, onslaughts of flies and pests, nausea, . . . difficulty breathing” and more. A related lawsuit using the same nuisance theory is now being brought against a Smithfield farm in North Carolina that’s home to 4,700 hogs. Both farms are part of the $2.9 billion hog industry that anchors much of North Carolina’s rural economy.
The defendants in both these cases are not shy in denouncing the initial jury verdict against Murphy-Brown? as “an outrageous attack on animal agriculture, rural North Carolina and thousands of independent family farmers who own and operate contract farms.” Smithfield’s CEO Ken Sullivan insists that personal dislocations necessarily “go hand in hand” with normal farming operations. And he protests that no liability should be imposed on hog farms that operate in full compliance with all applicable state and federal regulations. He made the dire forecast that if these verdicts stand, chicken, turkey, and even wheat farmers could be next. He warned ominously that Smithfield could pull out of the state altogether.
To avoid that risk, Smithfield and the hog farmers are looking for legislative relief. They proposed a bill that will set a legal presumption that no farm shall be treated as a nuisance if its operations comply with state and federal regulation. Would-be plaintiffs will have to prove their case not by a preponderance of the evidence, as under current law, but by the higher standard of clear and convincing evidence. Finally, the legislation stipulates that no farm could be branded a nuisance on the ground of “changed circumstances” after it is in operation for one year. These changed circumstances are broadly defined to include “a change in ownership, occupancy, or the use of the property that is affected by the alleged nuisance.”
Nuisance disputes such as these go back hundreds of years. Now, as then, the correct approach rejects legislative fixes and allows private suits to go forward. Smithfield wants to externalize a huge portion of its costs on the lungs and comfort of its neighbors, but the loss should fall on the party that creates the harm, not on its neighboring victims. Smithfield’s nuisances have been defined under North Carolina law as nontrespassory physical invasions that are eerily similar to ordinary trespasses where one person enters his neighbor’s property without permission. To allow them to continue will lead to the overproduction of hogs, with a subsidy exacted from innocent neighbors, who cannot be said to have consented to the harm just because they are in the line of fire. It is appropriate for the courts to tell Smithfield and the hog farmers to mend their ways or shut down. Although these verdicts are lopsided—actual damages are too low and punitives too high—wiping the slate clean lets a well-understood wrong go unpunished. The defendants should be told to stop production until they clean up their act.
Most critically, Smithfield and the hog farmers should not be allowed to make a cozy legislative deal that prejudices their neighbors. Unfortunately, this all-too-common regulatory strategy seriously undercuts the effectiveness of modern environmental protections. Public environmental law works best when it protects the public against diffuse nuisances that are too costly to handle by private litigation. One good example is tailpipe regulations to control automobile emissions because it is not feasible for each Los Angeles resident to sue each automobile driver separately for the harms caused by that driver’s emissions. What’s needed is a coordinated attack on the aggregate effect: well-structured emissions standards will stop most of these harms before they occur. Public fines and vehicular inspections can take the place of private damage actions and private injunctions against continued nuisances. But in places like Los Angeles where pollution reaches high levels, a well-designed system of public regulation should not insulate polluters from the consequences of their harm, even if public sanctions displace the private rights of action.
The risk of this regulatory abuse is found in the well-named 2007 case of Irritated Residents v. EPA. The EPA negotiated a master consent decree, setting timetables for emissions controls with a variety of animal feeding operations (AFOs) who produced “eggs, broiler chickens, turkeys, dairy, and swine.” The decree covered “ammonia, hydrogen sulfide, particulate matter, and volatile organic compounds.” The EPA slowed down on the enforcement of its multiple environmental statutes because it found it difficult to calibrate the loss. But so long as major harms are imposed on these neighbors, why should any consent decree protect these AFOs from ordinary tort liability? Current administrative law goes astray when it allows a government consent degree with polluters to continue in operation for years. The older common law of nuisance, in contrast, has the great virtue of providing prompt and effective legal protection against hard-core pollution, with damages for past harms and injunctions against future ones. Ironically, modern environmental protection offers too little protection against garden-variety nuisances, while at the same time modern law goes too far in the opposite direction: The decision in Babbitt v. Sweet Home Chapters of Greater Oregon (1995) allowed government to immobilize the use of vast tracts of land for habitat preservation for endangered species, even without paying a dime in compensation, and in the total absence of any nuisance. Sad!
A second problem with the proposed North Carolina reform is less pressing. In most cases, the new, higher burdens of proof will not play a crucial role since many ongoing nuisances that meet the lower standard of proof will also meet the higher one. But occasionally, liability is sharply contested—and when that happens, it makes no sense to tip the scales in favor of potential polluters against their potential victims.
Third, the introduction of the “changed circumstances” defense raises the much vexed issue of whether, in response to a nuisance action, the defendant may show that the plaintiff “came to the nuisance.” One part of this purported defense holds that no party who buys land knowing that it is subject to a nuisance can complain of the risk. The second part of the defense would hold that no one who knows of a neighbor’s nuisance-like behavior may complain if the defendant’s preexisting noise or stench interfere with new activities undertaken by the plaintiff. But the general view rejects this defense.
To see why these defenses should be rejected, look at the entire cycle of events from start to finish. If the buyer cannot object to a nuisance, the putative seller of the property suffers a capital loss even though he has not yet sustained a physical loss. If a current owner cannot make a new use of his land, then the neighbor’s unilateral action lets the neighbor obtain an easement to cause damage to someone else’s property for free. There is, of course, no reason to stop the current activities of the neighbor if they cause no current operational harm. But the price that the defendant pays for avoiding immediate liability is a suspension of the statute of limitations until the plaintiff makes his new and proper use of his own land. The textbook example is the 1879 case of Sturges v. Bridgman, in which the court allowed a physician in a newly created office to stop the noisy work of a neighboring confectioner who had operated his equipment next door for many years. No one should be allowed to acquire unilaterally a perpetual easement over his neighbor’s land by moving first. Rejecting the coming to the nuisance defense stops that strategic behavior. The one sensible offset is that the nuisance maker gets a bit of time to wind down his operations—while paying damages for the interim losses.
It is far from clear whether the North Carolina legislature will allow new nuisance cases to go forward under the common law rules. But blocking these nuisance suits by statute creates its own legal risk that North Carolina will have to pick up the tab. In Loretto v. Teleprompter Manhattan CATV (1982), the Supreme Court held that “a permanent physical occupation authorized by government is a taking without regard to the public interests it may serve.” There is no good reason to distinguish the authorization of permanent nuisances from the authorization of permanent trespasses. So by protecting Smithfield and the hog farmers, North Carolina runs the substantial risk of imposing liability on itself. Matters need not come to that. For legal and economic reasons, North Carolina should allow the nuisance actions against Smithfield and the hog farmers to continue.
© 2018 by the Board of Trustees of Leland Stanford Junior University
Published in Law
How long have these neighbors been neighbors? Because if these are city-folk pulling a Green Acres move then one of the first things they should have been made aware of is this: animal farms smell. Best not to build your dream home downwind of a chicken farm unless you are aware what a chicken farm smells like in August.
Richard, who was there first? If the hog farmers, how is the neighbors’ complaint relevant?
We have a turkey farm in my town. When the next-door green farmer uses turkey manure in the spring the effect is breathtaking. But farms require manure, and those of us who choose to buy homes in the neighborhood need necessarily accept the malodor of a week or so in April, for the farmer’s ability to make his living and to grow us yummy corn and tomatoes and squash in August.
I live in Charlotte, NC, close to Concord, so I’m well out of the urban environment. One of the most remarkable aspects of the Charlotte area is the “new” parts of towns and the “old” parts, often existing side by side or across the street from one another.
The “new” parts are massive suburban housing developments, thousands of houses in one area, and right across the street from the entrance to one of these places (I live in one) are a couple of row houses/1950’s era ranch houses, falling down or looking like they’re ready to.
Charlotte’s economic growth has fostered the expansion, not really that far from uptown Charlotte, into the surrounding countryside, and I’m assuming from Richard’s article this is a symptom of the “old” vs. “new”. I still see small mining operations (mostly talc, I think) that are just a stone’s throw from residential developments, and I think about the same kind of clash that exists with pig farmers.
No easy solution. But when land is cheap, incomes high, and capital is available and also cheap, it’s crazy to consider foregone demand for housing. Several new apartment buildings, modern ones, have gone up in uptown Charlotte since I moved here 3 years ago. What were holes in the ground are now 30 story apartment complexes, largely filled with younger people moving here for the work at the banks and the utility.
They won’t stay in uptown forever, they’ll want to move out and raise kids in traditional neighborhoods. Meaning this issue isn’t going away soon.
<waves> Greetings from Sioux County, Iowa, home of 35,000 people, around 400,000 cattle, over a million hogs, and something like 8.5 million chickens.
There are local county regulations, as well as state and federal regulations in play. Anyone that wants to set up a new feed lot or confinement has to propose the location to the public, and can’t set it up too near a population center. They also have to have proper sewage control (a few thousand hogs produce as much waste as a small town).
A nuisance suit can both target a public nuisance, and be a nuisance. I have a hard time mustering much sympathy for the plaintiffs. There can be health consequences of living next to a feed lot, and property values will plummet if one is built next door. But I also wonder how much of the complaint is due to just the ‘ickiness’ factor.
Here in Las Vegas, a farmer raised pigs out in the hinterlands of the county for nearly 45 years. Then, in the last two and a half decades, this area has exploded in growth. (Many people can’t afford California anymore, so they come here.) The empty desert that formerly surrounded the hog farm proved irresistible to the home builders. Naturally, the new homeowners came to realize that the “old farm” that was in their neighborhood was really stinky when the weather warmed up. No duh!! They ended up driving him out of business.
Who builds houses next to a pig farm?? Who buys those houses next to a pig farm?? Stupid people, I think. Where do they think their food comes from?? Apparently they think it just magically appears in the grocery store.
Nuisance law is rarely so clear cut as “who was there first.” Should a property owner be allowed to control other property because his nuisance was there first? That is, if I buy Black Acre and run a pig farm, even for dozens of years, does that mean that my operations should be allowed to control the value and use of nearby Green Acre? Shouldn’t I be required to pay for the other land whose value has otherwise been devalued?
It’s not easy, and this is why the professor says it should not be legislated. Every circumstance will be different and any attempt to make a black line defining a nuisance is bound to create havoc in property law cases. I suspect there’s a good chance that the jury’s verdict will be overturned on appeal as not consistent with the common law approach to nuisance. Time will tell.
This is a problem that has been going on for decades in North Carolina. The problem is the wastes that the hog farms generate.
For a couple of decades, Wendell Murphy was able to protect the hog industry with legislation that forbade the state from even mapping where hog farms were, how many hogs there were, etc. As a rule of thumb, hogs generate the waste of 2.5 people every day. The waste is generally collected in a lagoon and anaerobically digests producing hydrogen sulfide, methane, and carbon dioxide. These are open to the atmosphere. During the summer, it can be overwhelming.
Breeches in the lagoons also happen causing pollution of rivers and streams. It has caused major outbreaks of Pfisteria, a flesh-eating bacteria, in the sounds of North Carolina. These happened much more frequently than now because two hurricanes (Fran 1996 and Floyd 1999) knocked out the existing hog lagoons and upgraded designs were put in.
The answer is to put in anaerobic digesters for the waste, generate electricity using the methane, and clean out the existing lagoons. This is being done.
This is not unlike people who either buy houses near airports, or one already existing neat an airport. The same goes for train tracks, gun ranges, etc. Buyer beware! I hope the pig farmers win on appeal.
As for the plaintiffs, I would have settled for a free lifetime supply of bacon, sausage, and hams . . .
I think that I agree with the outcome in both the North Carolina hog farm case and the 1879 Sturges v. Bridgeman case from jolly ol’ England.
I do not agree with Prof. Epstein’s advocacy of a blanket rejection of the “coming to the nuisance” doctrine. Nuisance law is a complex, multi-factor inquiry. It generally has to do with incompatible land uses. The timing of development might make a difference.
Arizona has a leading case on this, Spur Industries v. Del E. Webb Development, from 1972. Webb was the developer of Sun City, a very large retirement community outside Phoenix in a previously agricultural area. Spur operated a cattle feed lot, which I think is just slightly less stinky than a hog farm.
The real problem was that Sun City was already built, and there were hundreds or thousands of nice retired folks living with the stench, filth, and flies of a cattle feed lot. The Arizona Supreme Court upheld injunctive relief, meaning that Spur was ordered to close or move. But, it also stated that since Webb had “come to the nuisance,” it could be required to pay Spur’s costs of closing or moving. The Court quoted a decision from Kansas presenting the viewpoint in the alternative to Prof. Epstein’s:
Like Rebbe Tevye, this is an area in which I can sometimes think that both sides are right.