Hurricane Florence Lays Waste to North Carolina Hog Farms

When Hurricane Florence was first predicted to make landfall in Eastern North Carolina earlier this month, Governor Roy Cooper issued the unprecedented action of ordering state-mandated evacuations for many ENC residents. But in one county alone, 2.9 million residents stayed put: the hogs of Duplin County, N.C. Riding out the storm with them? Their waste.

Hurricane aside, the Duplin County hogs have had a stormy year. Inundated with high-profile nuisance lawsuits, neighbors of the county’s industrial hog plants have sought damages for the hassle of living next to the pork producers. These nuisance claims have focused on the industry’s use of “anaerobic lagoons,” a process of storing hog waste in controlled pools, liquefying the feces, and spraying it on fields as fertilizer. The neighbor-plaintiffs argue anaerobic lagoons bring with them hordes of flies, an overpowering stench, and other negative externalities that severely reduce the quality of life of anyone living next to the hog farms. What’s more, the juries – themselves selected from a region whose economy is heavily dependent on agriculture – have sided with the neighbors. Awards topping $473.5 million have been awarded to plaintiffs (though later reduced by a judge to comply with North Carolina’s restriction on punitive damages in farm-nuisance claims).

Hurricane aside, the Duplin County hogs have had a stormy year. Inundated with high-profile nuisance lawsuits, neighbors of the county’s industrial hog plants have sought damages for the hassle of living next to the pork producers.

These jury awards have the North Carolina Legislature concerned. In the midst of these trials, the North Carolina State Senate passed Senate Bill 711 – in opposition to Governor Cooper –strengthening  the state’s “Right to Farm” laws. All 50 states have some iteration of a Right to Farm law, which partially shields farmers from nuisance claims brought by neighbors. Senate Bill 711 amended already existent Right to Farm statutes in North Carolina, providing, in pertinent part, that a plaintiff must show a “fundamental change” in an agricultural operation in order to collect damages. The legislature left very little room for interpretation of “fundamental change,” stating that neither: “(1) change in ownership or size, (2) an interruption of farming for a period of no more than three years, (3) participation in a government-sponsored agricultural program, (4) employment of new technology, [nor] (5) a change in the type of agricultural or forestry product produced” can prove a fundamental change. But what’s not covered under the newly-widened liability umbrella passed by the legislature? Hurricanes.

In 1999, Hurricane Floyd caused such catastrophic flooding in Eastern North Carolina that the anaerobic lagoons harboring hog waste were breached, spreading fecal matter across large areas of land and contributing to toxic algae blooms. Hurricane Matthew brought the same problems of flooding in 2016, and now the state seems doomed to repeat history with Hurricane Florence. Little has changed since these past hurricane seasons, save perhaps the North Carolina Right to Farm laws. For the first time since Senate Bill 711 was passed, pig waste is projected to flood communities surrounding industrial hog farms. With the bill’s heightened restrictions on neighbors suing for nuisance, many might be barred from recovering damages.

“The provisions of [Senate Bill 711] shall not affect or defeat the right… to recover damages for any injuries or damages sustained by him on account of… any overflow of lands.” In this regard, a plaintiff should be able to collect damages in the event of flooding if she can prove a fundamental change in the agriculture operation, though the bill stops short of identifying if flooding itself is a fundamental change. In the weeks and months to come, it will be up to the courts to decide whether Senate Bill 711 will allow neighbors of hog farms to claim nuisance in the event of flooding due to natural disaster. Depending on the outcome, the legal landscape for those affected one way or another by North Carolina’s hog industry may look different come next hurricane season.