After more than 20 years of being burdened by industrial hog farms, more than 500 hog farm neighbors filed 26 federal nuisance lawsuits against the Smithfield subsidiary that contracted out the hog raising to area farmers, in 2014. They complained that the noise, smell and pollution greatly disrupted their quality of life and negatively impacted their health. Juries in five trials agreed and awarded plaintiffs a total of almost $550 million.
In response, Republicans in the General Assembly passed a series of amendments limiting when and under what conditions such lawsuits could be filed and by whom.
Under the new restrictions, a nuisance lawsuit can only be brought within a year of the establishment of the agriculture or forestry operation on which the complaint is focused or within a year of a "fundamental change." Changing ownership, technology, product or the size of the operation doesn’t count as a fundamental change.
In addition, punitive damages can only be awarded if the farm operator has been criminally convicted or received a regulatory notice of violation that state farm laws were broken. The law also set a half-mile geographic radius for neighbors who are eligible to sue for nuisance.
Gov Roy Cooper vetoed the bill. “Giving one industry special treatment at the expense of its neighbors is unfair,” said Cooper. The GOP controlled General Assembly overrode Cooper’s veto.
In challenging the constitutionality of the new restrictions in the Farm Acts of 2017 and 2018 REACH, a group of eastern North Carolina environmental activists, named State Rep. Tim Moore and State Sen. Phil Berger as defendants. Plaintiffs argued that the laws would have disparate impacts on low-wealth and non-white North Carolinians and take away their only avenue for damages. A Dec. 23, 2020 decision from a three-judge Wake Superior Court panel dismissed the lawsuit.
On December 21, court of appeals judges John Tyson, Jefferson Griffin and Fred Gore unanimously affirmed the dismissal and ruled that the North Carolina legislature had the authority to make it difficult, if not impossible, for people to sue hog farms for nuisance.
The appellate judges ruled that the restrictions are in line with the state’s policy of promoting agricultural and forestry activities and production and fall under the purview of the state legislature.
The amendments “are a valid exercise of legislative and the State’s police powers,” wrote Justice Tyson. He added that livestock, and animal husbandry activities and production within North Carolina clearly rests within the scope of the State’s police power.
The appellate court ruled that since the laws are not a “carve-out” for agriculture and forestry since they are generally applicable to these industries and do not create a special protected class.
“These nuisance claims are one of the only legal tools that people can use to protect their property rights. So when the legislature rolls them back, they are effectively taking away the last legal tool that these communities have to protect themselves, their families and their property,” said Blakeley Hildebrand, an attorney for the Southern Environmental Law Center.