The Stink and Injustice of Life Next to an Industrial Hog Farm
Will the world’s leading pork producer be held responsible for making life unbearable in rural Southern communities?
In a federal courtroom in Raleigh, North Carolina, a 14-year-old honor student named Alexandria McKoy swore to tell the truth. Then she settled in to testify against the world’s largest pork producer.
McKoy had traveled 90 miles from Bladen County, part of the flat and farm-heavy coastal plain that covers most of eastern North Carolina. Her family lives on a sandy cul-de-sac that recedes into a driveway flanked by “No Trespassing” signs. Her mother grew up on that land, working in the fields with her sharecropper father and playing in the woods nearby.
In the mid-1990s, a farmer named Billy Kinlaw bought the property at the end of the road. He built a dozen swine houses and three waste lagoons, large open pits that hold a slurry of feces and urine turned pink by bacterial action. Kinlaw began raising pigs, with a permit to house more than 14,000 at a time, most recently under contract to Murphy-Brown, the hog production subsidiary of Virginia-based Smithfield Foods.
During the late 20th century, as the tobacco economy declined, farms like Kinlaw’s transformed North Carolina into the country’s No. 2 hog production state, after Iowa. The state’s 2,300 swine operations are responsible for most of the 10 billion gallons of wet livestock waste generated in North Carolina, according to a 2016 analysis by the Environmental Working Group and Waterkeeper Alliance, an international clean water group. There are roughly 3,300 waste lagoons, which occasionally overflow or breach their walls, particularly during hurricanes.
Many of the farms are near the homes of African American families like the McKoys. The journal Environmental Health Perspectives, which is funded by the federal government, described the smell in these rural communities as “reminiscent of rotten eggs and ammonia.”
McKoy’s bedroom was close enough to the farm, she testified, that she could hear the animals squeal. “Like screeching—a screeching noise,” she said. She added that she could smell their waste, too, and tried to mask it with an air freshener and scented candles. Hog farm neighbors often complain that the odor, while intermittent, is so overpowering that they cannot tend their gardens, hang their laundry, or invite relatives over for cookouts. Industrial farms, they say, also bring flies, buzzards, and intense truck traffic day and night.
In 2014 more than 500 North Carolinians, most of them African American, blitzed Murphy-Brown with more than two dozen federal lawsuits. The plaintiffs included McKoy, her mother, and her elder brother. They argued that Smithfield, which dominates the state’s swine industry and owns the animals raised under the company’s contracts, has the resources to phase out the prevailing waste management system, which involves storing the pigs’ feces and urine in lagoons and then spraying it onto fields as fertilizer. They said the company can dispose of waste in less noxious ways but refuses to do so.
The plaintiffs accused Smithfield of creating a “private nuisance,” which the North Carolina Supreme Court has described as an “invasion” of someone’s “private use and enjoyment of land.”
Smithfield called the complaints exaggerated and the alternatives too costly. It described the lawsuits as “a money grab by a big litigation machine.” In April 2018, Smithfield defense attorney Mark Anderson told jurors that the case wasn’t really about the plaintiffs at all. “These are good people,” he said. “They are here because of other people’s agendas.”
On the witness stand, McKoy recounted the things she couldn’t do outdoors: practice her flute, ride her bike, and sit on her grandmother’s porch and read. (At the time, she was enjoying a novel about a werewolf.) Recently, she said, she invited a classmate over, and they got off the school bus to an awful stench. “Where is that smell coming from?” her friend asked. “Is it coming from your house?”
Other children, McKoy testified, covered their faces with their shirts as the bus approached her house. Or they peered out the windows, trying to find the source. “I don’t want people to remember me by a smell,” she said.
For three weeks, the jury listened to dueling narratives. Some neighbors described their diminished lives. Others, including a couple who attended oyster roasts and pig pickings at the Kinlaw farm, insisted there was no offensive odor. Jurors watched video testimony of Steve Wing, an epidemiologist who died before the trial, describing the headaches, coughing, and nausea he found in higher numbers among hog farm neighbors than among cattle farm neighbors and those who didn’t live near intensive livestock farms. Wing spent two decades documenting the harms, including asthma symptoms and elevated blood pressure, suffered by those living or attending school near swine operations.
Wing, who was an associate professor at the University of North Carolina, described a letter he received from lawyers representing the North Carolina Pork Council. That letter demanded the confidential identities of the people interviewed for his study.
Anderson told jurors that North Carolina’s hog farms are “highly regulated.” Don Butler, a retired Smithfield executive, acknowledged writing a 1999 memo explaining that the state’s new odor rules, which he helped shape, “are so vague and subjective that enforcement will be difficult. This may be to our benefit.”
The jury came back with a knockout verdict: Not only was Smithfield responsible for its neighbors’ suffering, but it had also acted wantonly enough to warrant punitive damages. The jury awarded the 10 plaintiffs $50.75 million combined, though the award was reduced to $3.25 million because of a state cap on punitive damages.
It was the first of five trials in 2018 and 2019—a bellwether case for the other suits. Smithfield lost all five, even the two for which it chose the plaintiffs. It was assessed wildly different damage awards, from $102,400 to $473.5 million. The latter was scaled back to $94 million because of the cap.
Smithfield has appealed the first three verdicts, which were the largest, to the Fourth US Circuit Court of Appeals, calling the litigation an “almost existential threat” to North Carolina farmers. The court is scheduled to hear oral arguments on the first case, involving the Kinlaw farm, starting January 28. If the Fourth Circuit upholds the awards, that could green-light the cases of hundreds more plaintiffs—a protracted legal battle over environmental justice.
A single verdict might be an anomaly; five are hard to ignore. The litigation sparked a public relations offensive: Smithfield called most of the trials unfair and the lawsuits “an outrageous attack on animal agriculture.” And the suits triggered a chain of political backlash and counterbacklash spanning all three branches of North Carolina’s government.
When industrial hog farms started dotting North Carolina’s coastal plain in the 1980s and ’90s, their impact did not fall evenly. A 2014 study by Wing and his colleague Jill Johnston concluded that African Americans, Native Americans, and Latinos are more likely than whites to live within three miles of a large swine operation. The industry disputes the study’s conclusion, calling Wing an environmental justice advocate rather than a neutral scientist and describing the three-mile standard as so broad that it encompasses entire counties.
Those farms quintupled the state’s hog population over four decades, to 9 million today. They set up shop in rural communities where, regardless of race, life centers on gardens, porches, and yards. “We were always staying outside,” said Lendora Farland, a 48-year-old patient care assistant who lives in the Duplin County home where she grew up. (Her parents are plaintiffs.) “Our house was the neighborhood house where the kids came,” where they played dodgeball and basketball and ate her mother’s homemade biscuits. The family grew cucumbers, field peas, watermelon, okra, tomatoes, and sweet potatoes. They raised livestock, too, and shared the bounty.
“If we had a hog killing, the neighbors would come over, and we would give them a portion,” she said. “Or if we were doing corn, which is a big job—cutting corn off the cob—the neighbors would help, and we would divide that.”
When a hog farm opened next door in 1985, Farland said, the odor was nothing like that of her family’s five pigs. “If you ever had a sick child that had diarrhea and you accidentally left the Pamper in a hot car and you got in the car two days later—that impact,” she said. Their laundry, hanging on a clothesline, started smelling like hog waste, she recalled, so it became a Saturday morning ritual to visit the launderette. “We would be there at 5:30—the man didn’t get there till 6—just to wait in line to dry our clothes.”
Outdoor gatherings grew infrequent and awkward. “Last year, we had a Father’s Day cookout here, because my dad was too weak to go anywhere,” she said. “To me that day, it didn’t smell bad. But to my cousins, it was an awful smell. One of them, she said, ‘Lendora, I can’t take it. I got to go.’”
Matthew Carter, whose family owns the farm next door to Farland’s home, declined an interview request on behalf of the family. His father, Joey Carter, testified that he was unaware of any problem. “I’m in the neighborhood every day when I’m over there, and up until the lawsuit, I didn’t know there was an odor issue or nothing,” said the elder Carter, who is a retired local police chief.
Odor is too subjective to be precisely quantified, experts on both sides testified. One of them, Clarkson University environmental engineer Shane Rogers, said he found Pig2Bac, a DNA marker of odor-carrying swine waste, on the plaintiffs’ houses near the Carter and Kinlaw farms. “It’s a physical representation of feces,” he told a jury. “It’s an actual physical measurement of feces moving from the operation to the sampling device.” Smithfield’s expert witnesses disputed Rogers’s conclusions.
Smithfield declined several interview requests. Its executives, lawyers, and political allies argue that the private-nuisance claims were manufactured by trial lawyers looking to get rich from high-dollar jury awards. “There was harmony in that part of the county until this lawsuit got brought. Until people from outside came in with an agenda,” Anderson told jurors in the first trial.
In fact, the disharmony in swine country predates the litigation. “We had been organizing long before we were able to get a lawyer,” said plaintiff Elsie Herring, who lives in Duplin County and is retired from a banking career. “Perhaps they had this sense that we were complacent. But you can never be complacent when you’ve been forced to live with animal waste that’s blowing on you and you have to smell it. No, there was nothing nice about what was happening in our communities.”
In 2016, Environmental Protection Agency investigators interviewed more than 60 hog farm neighbors, whom the agency found “credible.” In a letter to the North Carolina Department of Environmental Quality (NC DEQ), the EPA said that several neighbors considered themselves “prisoners in their own homes”; some had given up hope that state regulators would protect them.
“Several residents said that for more than 15 years, the government has been well aware of the conditions they have to live with, but has done nothing to help, so complaining to NC DEQ would be futile,” wrote Lilian Dorka, the director of the EPA’s External Civil Rights Compliance Office.
The EPA said that those who did complain reported “retaliation, threats, intimidation, and harassment.” In 1998, Herring received a letter from a farmer’s attorney saying that if she persisted in making “groundless claims” against his client, eventually “we will ask the Court to put you in prison.”
None of the contract farmers were named in the lawsuits. Still, they consider themselves collateral victims. Kinlaw describes himself as a hardworking farmer with an unblemished regulatory record. He insisted in an interview that his neighbors signed onto the lawsuit not because of legitimate grievances but because they expected to win “millions of dollars.”
“I’ll also point this out,” he said. “I don’t mean to say I’m racist by any means, because some of these black people I consider friends of mine. I’ve been knowing them all my life, and I’m 80 years old. Like I said, they’ve just been brainwashed. But there’s white people that live right beside these folks. Not the first white person has appeared against me.” (There are some white plaintiffs in the lawsuits. Their cases involve other farms.)
“It don’t take a smart person to figure this out,” he added. “Make your own deductions. I told you the truth.”
The hog industry has long found allies in the North Carolina legislature. Twenty-four years ago, in its Pulitzer Prize–winning “Boss Hog” investigation, the Raleigh News & Observer documented how pork producer and lawmaker Wendell Murphy and his allies helped protect large farms with sales-tax exemptions and limits on county zoning powers. A state law passed in 2014 kept complaints from the public against farm operations confidential. That made it harder to track whether regulators were taking those complaints seriously.
The recent lawsuits provoked yet another round of legislative protections. In 2017 lawmakers voted to limit future nuisance damages, leaving the industry on the hook only for the diminished sale or rental value of a plaintiff’s home. In effect, they stripped hog farm neighbors of the right to sue for personal suffering.
During the debate, Representative Jimmy Dixon, a Duplin County Republican and one of the bill’s sponsors, addressed the lawsuits directly. “Ladies and gentlemen,” he said, “when the final chapter is written on these kinds of cases, I will tell you that the very people who are pretended to be represented are being prostituted for money.”
“I’ve lived on a farm all my life,” he added. “My children and my grandchildren have walked gleefully with me through my hog houses and…have played around the lagoons.” Yes, he said, livestock farms produce some “adversities.” Still, “every single one of us in this chamber should, on a regular basis, get down on our knees and thank our heavenly father that there are people who are willing to put up with the circumstances of production so that we can enjoy the benefits of consumption.”
According to Vote Smart, a nonpartisan research group, Dixon received $28,975 from the livestock industry during the 2018 election cycle, out of $250,593 he raised. Among his top donors were the North Carolina Farm Bureau ($10,400), the North Carolina Pork Council ($8,200), and Smithfield Foods ($5,200). He told the nonprofit newsroom ProPublica last year that campaign contributions don’t influence his decisions.
Elizabeth Haddix, a managing attorney at the North Carolina regional office of the Lawyers’ Committee for Civil Rights Under Law, calls the 2017 measure a departure from centuries of legal tradition. “The right to use and enjoy your property without unreasonable interference—that’s been common law since before we were the United States,” said Haddix, who represents several groups fighting the adverse impacts of industrial livestock farming. The law, she continued, will hinder legitimate sufferers from suing. “Lawyers don’t take these tort cases unless they’re going to get big damages, because that’s how they get paid.”
Democratic Governor Roy Cooper vetoed the bill. Lawmakers overrode the veto. They overrode another veto in 2018, on a bill restricting potential nuisance-suit plaintiffs to those who live within a half-mile of the alleged nuisance and sue within a year after a farm opens or makes a “fundamental change.” (Switching products or expanding is not considered fundamental.) North Carolina has had a de facto moratorium on new swine operations since 1997, which essentially means the law disqualifies all hog farm neighbors from making nuisance claims.
Even though the restrictions were passed by the state legislature, they still apply to federal lawsuits. That’s because federal judges often defer to state laws and legal standards in, for example, defining a nuisance. (This also explains why the federal court had to respect the state’s cap on punitive damages.) “In a diversity case such as this”—with North Carolina plaintiffs and a Virginia-based defendant—“the court applies the controlling state’s substantive law, which here is North Carolina,” senior District Judge W. Earl Britt wrote in one order, echoing a 1938 Supreme Court decision.
In June the Lawyers’ Committee sued the state, asking the court to declare both laws unconstitutional. The four plaintiffs include the North Carolina Environmental Justice Network and Waterkeeper Alliance. That case is pending.
As the verdicts rolled in last year, Smithfield announced a change in how it will handle its hog waste in North Carolina and two other states. It plans to cover many of the lagoons, capture the methane, and convert it to energy. In an e-mail, Smithfield spokesperson Lisa Martin said the announcement was the culmination of decades of research, but she did not comment on the lawsuits.
In May 2018, Smithfield wrote in a letter to Kinlaw that the plaintiffs “produced no scientific data” to deem his farm a nuisance. “However, as long as the verdict stands, continued placement of pigs at your Farm poses a significant risk of more costly litigation.” He was in “material breach” of his contract and had 10 days to “cure” the odor, flies, buzzards, and noise. When he said this would be impossible, the company removed its pigs and stopped delivering new ones.
In the letter Smithfield did not specify how Kinlaw was supposed to fix a problem that the company insists does not exist. Asked whether Smithfield believes Kinlaw did anything wrong, Martin declined to answer.
Smithfield also stopped supplying the other farms mentioned at trial. On Facebook, Matthew Carter posted a video of a Smithfield truck hauling a double-decker load of animals past a row of feed bins. “I guess I’m no longer a hog farmer,” he recalled his father saying.
Kinlaw said the ordeal caused him to lose his respect for the legal system. “It hurts your soul,” he said. “You do something for 20-something years, and they pull the plug on you, and you haven’t done anything to cause that. It makes you wonder what in the world is going on.” Because of the circumstances, the company agreed to keep paying him a monthly fee, at least for now. “If it weren’t for Smithfield upholding their contract,” he said, “I’d be in a mess.”
Living beside the Carter farm, Farland has a different perspective. When she agreed to testify, she understood that relief might come too late for her aging parents. At least if the plaintiffs prevailed, she said, her nieces and nephews might be able to enjoy playing outdoors again.
Her parents are still alive. Her father lives in a nursing home. Many weekends she picks him up and takes him back to the house where she and her mother still live. One Saturday they were sitting on the porch, she recalled, and he said, “Lendora, this smells like home.”
Source: thenation.com
