There’s a new strategy when it comes to combating the smells and air quality concerns that arise from large-scale animal feeding operations: Blame the company, not the farmer.
And if a recent federal case against the largest pork producer in the U.S. is any indication, it’s a model that could benefit contract growers — people who don’t own the livestock they raise but own the property and the barns.
“What the plaintiffs did in their complaint was lay out factually how the farmer in these arrangements doesn’t really do enough to be found liable for damages,” North Carolina State University ag and environmental law professor Andrew Branan said.
For years, neighbors in livestock-heavy states have complained about the hundreds or thousands of animals who live nearby, saying the odors and fecal particles create a dangerous environment to live in. They’ve gone after the farmers themselves to force operational upgrades from dairies in Wisconsin to egg farmers in Arizona.
When it comes to hogs, 44 percent are raised by contract growers, who receive money from large, sometimes multinational meat companies, and often when they can no longer afford to raise the animals themselves.
That works well for farmers like Rob Ewoldt in Davenport, Iowa, who raises 2,500 hogs for the family-owned Eichelberger Farms.
“In our operation, this is about the most steady income that we can have is through our contract feeding of hogs for somebody else,” Ewodlt said.
But the contracts, which aren’t public, can be problematic. Some say large companies underpay farmers to the point that they’re not able to mitigate the smells and air quality issues. That was the case in North Carolina, where 10 neighbors of a hog farm went after Murphy-Brown, a subsidiary of Chinese-owned Smithfield Foods.
Inside the successful suit
It got to the U.S. District Court in Raleigh, North Carolina, where the jury was convinced the farmer didn’t “really do enough” to be at fault because the company controlled so many parts of the operation through the contract, according to Branan.
“And so what it all added up to was saying that the integrator was really the one at fault even though they don’t own the property next door,” he said.
And the neighbors won big on April 26: More than $50 million, with $75,000 each to compensate for lost property use and $5 million each to punish the company for, as Branan quoted the jury instructions, “conscious and intentional disregard of and indifference to the rights and safety of others.”
U.S. Agriculture Secretary Sonny Perdue, American Farm Bureau Federation President Zippy Duvall and others criticized the decision, with Duvall saying any jury should be able to “visit the farm and hear evidence about actual odor measurements” and that the verdict would “motivate more greed-driven lawsuits against more farmers.”
North Carolina limits the amount of damages, so the ultimate payout was reduced to $3.25 million.
There are 25 similar neighbor-vs.-company lawsuits in North Carolina, though Branan believes the cap could keep more of them from moving forward. That’s because it’s expensive to fight multinational companies, and there’s always the risk of losing a lawsuit.
However, he said, lawyers may be more encouraged to look to states where there is lots of livestock and looser caps — like the Midwest.
Where the lawsuits could crop up
Iowa produces the most hogs in the U.S., followed by North Carolina, Minnesota and Illinois, according to the U.S. Department of Agriculture.
Here, Ewoldt raises those hogs, as well as cattle and crops.
He’d just invested a half-million dollars into new hog barns when pig prices dropped in the late 1990s, so it would have been tough to get out of the hog-farming business.
He signed on with Eichelberger, which is significantly smaller than Smithfield and mainly covers southeast Iowa. The company is responsible for the hogs, food and medication; he pays for his facilities.
“We’re not growing roses. It’s not going to smell like roses. It’s going to smell like hogs. But we used to raise hogs outside, and I’ll tell you what, 250 pigs raised outside smells a heck of a lot worse than 2,400 head raised inside,” he said.
Ewoldt has invested in technologies that dampen the smell, things like windbreaks and injecting manure into the soil. Sometimes, he said, he’ll pump manure directly from pits under the hogs into the soil, “so it never even hits the air.”
(Injecting manure into the soil is standard in Iowa, where manure disposal laws largely prohibit waste lagoons in which poop sits, liquefies and then either evaporates or is sprayed onto fields. These lagoons and spraying practices are still prevalent in North Carolina, though, and played a significant role in the Murphy-Brown case.)
“You know we just try to do things like that to keep our neighbors happy,” Ewoldt said.
So far, it’s worked. He said while he faced some pushback when he was building the hog farms, he hasn’t gotten any complaints since, nor has he been sued. (Harvest Public Media could not independently confirm this.)
But nuisance lawsuits of any kind are concerning, he said, even if they’re aimed at companies instead of farmers. He also believes farmers should shoulder the blame.
There’s another reason why neighbors may start taking on companies instead of farmers. “Right to farm” laws, which have passed in all 50 states in the last few decades, don’t allow neighbors to file nuisance suits against farmers if the farmer and the farming operation was there first — unless the farm is breaking laws or environmental regulations. In the North Carolina case, the neighbors were there first.
While Iowa’s right to farm law is being challenged as unconstitutional due to property rights, Branan said there’s also a possible legal loophole, because the right to farm laws may not apply if someone sues a company instead of the farmer.
That’s why, according to West Virginia University law professor Jesse Richardson, state legislatures may try to change those laws in order to protect big companies and the millions of dollars of state revenue that livestock brings.
“I would just say that I’m seeing a lot of challenges to large livestock facilities already, and I think that if the legislatures start putting in protections for these, I think [legal challenges are] just going to increase more,” Richardson said
Smithfield is worth billions of dollars, so a few million-dollar lawsuits likely won’t force them to change any practices. (It did not respond to requests for comment.) The same could be said of other major and medium-sized meat companies.
But there could be a tipping point if enough neighbors-vs.-company lawsuits are filed, Duke law professor Michelle Nowlin said.
“And so, what I would hope that this would mean, is if the company takes this message seriously and wants to improve conditions for the community, is that they would provide more resources and more technical assistance to the growers to do a better job with the management of the waste and adopt more modern waste management practices.”
When asked if this could end up putting more costly burdens on the contract farmers, Nowlin said: “I don’t know if there’s more juice for them to squeeze for these individual growers.”
And while Ewoldt spoke well of his contractor, he did say that if farmers aren’t being paid as much by other meat companies, it’d be difficult for those growers them to modernize old facilities.
“You know, they cost a lot of money to upgrade,” he said.
Follow Madelyn on Twitter: @MadelynBeck8