CAFOs: Plaguing North Carolina Communities of Color

Author:Christine Ball-Blakely
Position:Christine Ball-Blakely graduated magna cum laude from the University of Tennessee College of Law in 2017. While in law school, Ms. Ball-Blakely served as Acquisition Editor for the Tennessee Law Review and as the President of the Student Animal Legal Defense Fund. She also served as a Law Clerk in the Animal Legal Defense Fund Criminal Justice ...
Pages:4-12
 
CONTENT
4Sustainable Development Law & Policy
cafoS: plaguing north carolina
communitieS of color
Christine Ball-Blakely*
I. IntroductIon
Grocery shopping has become a foraging expedition
through a market of lies. The coolers are stocked with
milk cartons boasting pastoral scenes of cows grazing
on verdant hills. Egg cartons are stamped “all-natural.” Sausage
is neatly packaged in a tube and emblazoned with a red barn.
But the origins of most meat and dairy products are far divorced
from these depictions of traditional farming. In stark contrast,
animal products are overwhelmingly produced in Concentrated
Animal Feeding Operations (CAFOs),1 otherwise known as
“factory farms.”2
The Environmental Protection Agency (EPA) defines
CAFOs as particular types of Animal Feeding Operations
(AFOs).3 AFOs are facilities where animals are conned together
in a small area, along with “feed, manure and urine, dead ani-
mals, and production operations.”4 In AFOs, food is brought to
the animals rather than the animals grazing in pastures.5 AFOs
are designated as CAFOs under two circumstances: (1) where
the AFO is a “signicant contributor of pollutants to waters of
the United States,”6 or (2) where the AFO “stables or connes” a
minimum number of animals.7
Today, about ten billion animals are raised and slaughtered in
the United States every year.8 More than 99% of those animals are
raised and slaughtered in CAFOs.9 American meat consumption
has nearly doubled over the last century,10 and the USDA projects
this consumption will further swell over the next decade.11 With
this level of consumption, it comes as no surprise that animal
products are cheap. Meat and dairy prices have been steadily
dropping in the United States for over a century, in part due to the
advent of CAFOs in the 1950s.12 But while the price Americans
pay for animal products at the grocery store may seem low in dol-
lars, the true price is staggeringly high.
CAFOs are deleterious to human and nonhuman animals
alike. In addition to causing unquantiable animal suffering,13
CAFOs put independent family farmers out of business,14 and
they create deplorable working conditions for employees.15
CAFOs also create massive externalities in the form of environ-
mental destruction while they ravage their vulnerable host com-
munities and trample civil rights.16 Section II examines some
of these communities, located on the North Carolina Coastal
Plain, which are home to many African American, Latino,
Native American, and economically disadvantaged people.17
This Section also describes the signicant environmental dam-
age that CAFOs deal to these vulnerable communities, which in
turn causes plummeting property values and endangers health.18
Section III explores relevant law and how it fails to protect these
vulnerable communities, creating the enforcement gap.19 Section
IV explains how the idea of farming is America’s sacred cow,
spurred by rosy visions of wholesome white farmers and their
families living out the rugged individualism that our country has
worshipped for centuries. Big Agribusiness (“Big Ag”)20 eagerly
and effectively exploits this idea, raking in immense prot
(including subsidies from misinformed tax payers) and power.21
With this power, Big Ag purchases politicians. Those politicians
twist the law into an instrument of oppression by carving out the
enforcement gap. The enforcement gap invites CAFOs to exploit
vulnerable communities. Section V reckons that North Carolina
presents a potential blueprint for the way forward.22 Though fed-
eral environmental and civil rights laws face further weakening
(and perhaps even extinction) under the Trump administration
and a Republican-controlled Congress, these vulnerable com-
munities in North Carolina can ght CAFOs at the state level.
II. north carolIna: a case study
In how caFos Plague Vulnerable
communItIes oF color
The “Black Belt,” a “crescent-shaped band throughout the
South where slaves worked on plantations,” runs squarely through
eastern North Carolina.23 This part of the country has historically
been dened as those places with a “black population majority at
the time of the Civil War.”24 After the Civil War and emancipation,
many African Americans remained in the Black Belt and worked
as sharecroppers and tenant farmers.25 But African American
farmers in the Black Belt were systematically deprived of farm-
land, largely due to discrimination in land sales and lending:
By the turn of the century, many of the black farm
operators in the South managed to acquire farmland.
Thereafter, however, black farm ownership and control
of land, and other resources such as capital, have been
severely limited due to systematic discrimination in land
sales and farm credit, reported in both historical and
contemporary sources. This was particularly the case in
the lack of access to credit . . . from the [Farmers Home
Administration (FmHA)] which was established in the
1930s to service the credit needs of farmers who failed to
meet the lending criteria of other lending institutions.26
* Christine Ball-Blakely graduated magna cum laude from the University
of Tennessee College of Law in 2017. While in law school, Ms. Ball-Blakely
served as Acquisition Editor for the Tennessee Law Review and as the President
of the Student Animal Legal Defense Fund. She also served as a Law Clerk
in the Animal Legal Defense Fund Criminal Justice Program. Ms. Ball-Blakely
would like to thank Professor Dean Hill Rivkin for his guidance on this project
and for his unwavering refusal to be silent about things that matter.
5
Fall 2017
Today, the communities in the Black Belt suffer from
economic oppression in the form of high unemployment and
poverty, low levels of education, low quality healthcare, and
substandard housing.27 CAFOs descended on these vulner-
able communities like a plague, beginning in the mid-1980s.28
Because communities of color and low-income communities
often lack the political power of afuent white communities,
CAFOs disproportionately occupy them.29 Indeed, the propor-
tion of African American, Hispanic, and Native American peo-
ple living within three miles of a North Carolina pig CAFO are
1.54, 1.39, and 2.18 times higher, respectively.30 Communities
of color and low-income communities also lack the resources to
leave compromised areas, where they are trapped by decreasing
property values and a plummeting quality of life.31
There are 9.5 million pigs in North Carolina—the other vic-
tims of the state’s $3 billion pork industry.32 The pigs are spread
across approximately 2,100 different operations33 and produce a
total of ten billion gallons of waste each year, which is “enough
to ll more than 15,000 Olympic-size swimming pools.”34 The
pigs are conned to large indoor facilities with slatted oors,35
and their waste is pumped outdoors to what the pork industry
calls a “lagoon.” Lagoons are vast open-air cesspools lled with
untreated manure, urine, and afterbirth.36 Some lagoons are as
large as seven-and-a-half acres and hold 20 to 45 million gal-
lons of waste.37 There are more than 4,000 lagoons in North
Carolina.38 These lagoons “have broken, failed, or overowed,
leading to major sh kills and other pollution incidents.”39 When
the lagoons become full, CAFO operators manage volume by
spraying the waste through sprinkler systems onto “sprayelds”
in large quantities.40 “Operators have sprayed waste in windy
and wet weather, on frozen ground, or on land already saturated
with manure,” causing runoff and leaks into aquifers.41
This waste management system fails to protect surrounding
communities from the environmental impacts of the industry.
Instead, CAFOs heap further injustice on surrounding North
Carolina communities by polluting their water and air, harming
their health, and depressing their property values.
a. polluteD water
CAFOs pollute surface water and groundwater in several
different ways, including lagoon breaches, catastrophic ood-
ing, and runoff.42 Potential contaminants include nitrates and
pathogens43 as well as ammonium, phosphate, dissolved solids,
metals and metalloids, pharmaceutical chemicals, and natural
and synthetic hormones.44 “Pathogens are parasites, bacterium,
or viruses that are capable of causing disease or infection in ani-
mals or humans . . . . There are over 150 pathogens in manure that
could impact human health.”45 Metals and metalloids include
copper, zinc, arsenic, nickel, and selenium.46 Pharmaceutical
chemicals include antibiotics, and hormones include estrogen.47
The consequences of lagoon breaches are severe, endan-
gering the water supply and aquatic life. In 1995, an eight-acre
lagoon breached and spilled “25 million gallons of animal waste
into the New River. The spill killed 10 million sh and closed
364,000 acres of coastal wetlands to shellshing.”48 Lagoon
compromises are more likely during hurricane season. Hurricane
Floyd pummeled the North Carolina coast in 1999 and compro-
mised fty-two lagoons, releasing uncontrolled waste into the
oodwaters.49 “Sampling conducted after Hurricane Floyd in
1999 found dangerous levels of E. Coli and Clostridium perfrin-
gens in water, even after oodwaters had receded.”50 In 2016,
it happened again. Hurricane Matthew dumped eighteen inches
of rain on the North Carolina Coastal Plain, causing ooding so
extensive that it was visible from space.51 “[T]he ood partially
submerged [ten] industrial pig farms with [thirty-nine] barns . . .
and [fourteen] open-air pits holding millions of gallons of liquid
hog manure.”52 Once more, uncontrolled waste owed freely
from lagoons into the oodwaters. Sprayelds saturated with
lagoon waste are also submerged following such major ooding
events.53
Even during normal weather conditions, sprayeld runoff
threatens North Carolina lakes, rivers, streams, other surface
waters, and groundwater.54 Indeed, “[t]he agriculture sector,
including CAFOs, is the leading contributor of pollutants to
lakes, rivers, and reservoirs. It has been found that states with
high concentrations of CAFOs experience on average [twenty]
to [thirty] serious water quality problems per year as a result of
manure management problems.”55 These contaminations cause
loss of aquatic life and invade the water supply.56 Lagoons and
sprayelds also compromise groundwater on a regular basis.57
Contaminants can enter ground water from a variety
of CAFO sources, including leaking lagoons, breaches
in piping or barn infrastructure, and land application
of liquid and solid wastes. There are guidelines for
design and construction of barns, infrastructure piping,
and lagoons that in theory would preclude leakage to
ground water, but in practice these events do occur.
In fact, even when properly constructed, slow leakage
from lagoons over time can release large amounts of
contaminants such as ammonium.58
Contaminated groundwater leads to contaminated drinking
water in rural areas like the Black Belt.59 Indeed, rural populations
have elevated rates of reliance upon wells for drinking water.60
Nonetheless, in this area of North Carolina, “[m]ost hog opera-
tions . . . are located in areas with high dependence on well-water
for drinking.”61 Those that do rely on wells for drinking water are
at higher risk for water contamination because the Black Belt is
located on the North Carolina Coastal Plain, which has high water
tables and wells that are unlined and shallow.62 For these reasons,
some residents have stopped using their wells.63
The health impacts of polluted water are serious, particularly
for those community members who have weakened immune
systems. Symptoms of illnesses caused by contaminated water
include “nausea, vomiting, fever, diarrhea, muscle pain, death,”
and kidney failure.64 People at high risk of illness or death con-
stitute approximately 20% of the United States population, and
they include the elderly, infants, young children, and those who
are pregnant, HIV positive, on chemotherapy, or are otherwise
immunosuppressed.65
6Sustainable Development Law & Policy
In addition to pathogen-driven illnesses, there is also the
threat of new viruses.66 Indeed, there is speculation that H1N1
may have spawned in pig CAFOs in Mexico.67 But despite this
risk, CAFOs are not required to test for new viruses because
they are not on the list of mandatory reportable illnesses to the
World Organization for Animal Health.68
Finally, there are often antibiotics in CAFOs’ animal feed.69
Seventy percent of all antibiotics used in the United States are
administered to animals as additives in their feed.70 The goal
of administering these antibiotics is to promote animal growth,
and therefore protability.71 The Center for Disease Control has
recommended that the use of antibiotics in “food animals” be
“phased out.”72 These antibiotics are dangerous because “[t]he
antibiotics often are not fully metabolized by animals, and can
be present in their manure. If manure pollutes a water supply,
antibiotics can also leech into groundwater or surface water.”73
The risk to the community is high because this exposure causes
antibiotics to be less effective for humans while also leading to
the development of antibiotic-resistant microbes.74
b. polluteD air
CAFOs produce emissions that fuel climate change75
and diminish ambient air quality.76 Indeed, between the ani-
mals themselves and the degrading waste in lagoons and on
sprayelds, CAFOs cause asthma, acid rain, and climate change
by releasing the following into the air: 400 volatile organic com-
pounds (VOC), particulate matter, methane, ammonia, hydrogen
sulde, ozone, endotoxins, and noxious odors.77 CAFOs pro-
duce nearly 75% of the United States’ ammonia air pollution.78
These emissions are so concentrated that it can be danger-
ous even to approach a lagoon—particularly in hot summer
months.79 “The oxygen-decient, toxic, and/or explosive atmo-
sphere which can develop in a manure pit has claimed many
lives.”80 There are multiple tales of farm workers who entered
lagoons to make repairs and succumbed to the emissions. Some
died from hydrogen sulde poisoning, while others asphyxiated
in the oxygen-starved air.81 Others died after collapsing during
rescue attempts.82
But it is not necessary to be near a lagoon to suffer from
the emissions—members of communities plagued by CAFOs
also carry health risks. One study showed that people in CAFO-
occupied communities “suffered disproportionate levels of ten-
sion, anger, confusion, fatigue, depression, and lack of overall
vigor as well as more upper respiratory and gastrointestinal ail-
ments than neighbors of other types of farms and non-livestock
areas.”83 Ammonia is a “strong respiratory irritant” that causes
chemical burns to the respiratory tract, skin, and eyes.84 It also
causes severe coughing and chronic lung disease.85 Hydrogen
sulde is acutely dangerous, causing “inammation of the moist
membranes” in the eyes and respiratory tract as well as olfactory
neuron loss, pulmonary edema, and even death.86 Particulate
matter causes “chronic bronchitis, chronic respiratory symptoms,
declines in lung function, [and] organic dust toxic syndrome.”87
Some of the most vulnerable individuals in these commu-
nities are children. “Children are known to be more vulnerable
to the adverse health effects of air pollution due to their higher
minute ventilation, immature immune system, involvement in
vigorous activities, the longer periods of time they spend out-
doors, and the continuing development of their lungs during the
postneonatal period.”88 Twenty-six percent of schools surveyed
in North Carolina reported that CAFO odors are noticeable
outside the school, and 8% reported that the odors were notice-
able inside the school.89 Economically disadvantaged children
are more likely to suffer health impacts from CAFOs, including
asthma, because those children are more likely to live and attend
schools in closer proximity to CAFOs.90
c. plummeting property valueS
There is evidence that CAFOs adversely affect property
values. “The most certain fact regarding CAFOs and property
values are that the closer a property is to a CAFO, the more likely
it will be that the value of the property will drop.”91 This decline
is due in part to the health risks that CAFOs bring to communi-
ties, but it is also due to the tremendous nuisances that CAFOs
create: odors from pig CAFOs, “reminiscent of rotten eggs and
ammonia,” are insufferable.92 “My family, neighbors, and I have
been held prisoner in our own homes by the unbearable stench
from the multiple industrial hog operations within a quarter mile
of my community.”93 Many community members no longer hang
laundry outside on clotheslines to dry for fear that their cloth-
ing will be ruined by the ne mist of manure that sprinkles their
homes and cars.94 Swarms of ies and mosquitos—attracted to the
prolic waste in communities plagued by CAFOs—accompany
the odor, bringing even further risk of disease.95
The degree to which CAFOs harm property values varies
depending on several factors. One study found that properties
within three miles of a CAFO decreased in value by 6.6% on
account of the CAFO, while properties within one-tenth of
a mile of a CAFO decreased in value by as much as 88%.96
Another study suggests that properties downwind from and clos-
est to CAFOs suffer the largest decreases in value.97 The size
and type of CAFO can also affect the degree to which nearby
properties decrease in value.98 A decrease in property value hurts
the property owner most directly, but this harm infects the entire
local economy when property tax rates plummet along with
property values.99
III. law as an Instrument oF oPPressIon:
ProPPIng uP caFos
While CAFOs devastate the environment and public health,
they are severely under-regulated at the federal level.100 And
at the state level, so-called “right-to-farm” and “ag-gag” laws
in North Carolina shield CAFO operators from nuisance suits
and whistleblowers, while North Carolina purports to regulate
CAFOs with laws that largely fail to protect communities.101
Thus, the law has parted like the Red Sea to make way for
CAFOs and all the misery that they rain down on vulnerable
communities.
7
Fall 2017
a. Devil in the DetailS: the enforcement gap in
feDeral environmental law
American environmentalism was born in the 1960s.
Following the passage of the Clean Air Act (CAA)102 in 1963
and the Clean Water Act (CWA)103 in 1972, landmark environ-
mental protection laws began sprouting up through the decades.
Still, because “farms are virtually unregulated by the expansive
body of environmental law that has developed in the United
States . . . .”104 environmental injustice abounds in vulnerable
communities.
1. The Clean WaTer aCT
The Clean Water Act (CWA) declares in § 101(a) that it
aims to “restore and maintain the chemical, physical, and bio-
logical integrity of the Nation’s waters” and achieve “water
quality which provides for the protection and propagation of
sh, shellsh, and wildlife” by establishing a framework for
federal regulation of surface waters quality standards and pollu-
tion discharges into the navigable waters of the United States.105
To accomplish this goal, the CWA “authorizes the regulation
and enforcement of requirements that govern waste discharges
into U.S. waters.”106 Section 402 of the CWA107 establishes the
National Pollutant Discharge Elimination System (NPDES),
which administers the efuent (waste) limitations established in
§ 301108 and prohibits the discharge of pollution109 from point
sources110 into navigable waters of the United States without a
permit from the Environmental Protection Agency (EPA) or the
state.111
Some CAFOs are large enough to qualify as regulated point
sources under the CAFO Rule.112 Those CAFOs must fulll
permit and annual report requirements.113 Regulated CAFOs are
also responsible for creating a plan for handling waste.114
But the CWA still fails to prevent CAFOs from polluting
water. First, fewer than 10% of all CAFOs are large enough to
qualify as a regulated point source under the CAFO Rule.115
Second, the stormwater exception swallows the CAFO Rule.
“Agricultural return ows and stormwater discharge are con-
sidered non-point sources and therefore do not require NPDES
permits to discharge pollutants through these avenues. This
exception to the Clean Water Act extends so far as to include
rainwater that contacts stored manure and subsequently ows
into navigable waters.”116 Thus, the CWA fails to regulate runoff
or to provide incentives to CAFO owners and operators to try
to avoid catastrophes during hurricanes and oods.117 Third,
punishing case law has greatly weakened the CAFO Rule, con-
tributing to the low number of CAFOs that are actually required
to obtain a NPDES permit.118 Fourth, noncompliance is rampant
and enforcement is dismal119—in part due to a lack of data on
existing CAFOs.120 Fifth, the CWA does not directly regulate
groundwater.121
2. The Clean air aCT
The Clean Air Act (CAA) “regulates ‘criteria-pollutants’
that deteriorate ambient air quality, hazardous air pollutants,
and emissions from certain specic sources of air pollution.”122
The EPA is authorized to “set mobile source limits, ambient air
quality standards, hazardous air pollutant emission standards,
[and] standards for new pollution sources. . . .”123 The EPA
is also authorized “to identify areas that do not attain federal
ambient air quality standards set under the act . . . and phase out
substances that deplete the Earth’s stratospheric ozone layer.”124
The goal of the CAA is to prevent ambient air emissions from
harming the environment and public health.125
Under the CAA, the EPA must set minimum national stan-
dards for air quality, or National Ambient Air Quality Standards
(NAAQS), but the states are primarily responsible for ensuring
compliance with NAAQS. 126 Areas that are struggling to meet
NAAQS, called “nonattainment areas,” must implement special
measures to control air pollution.127 The CAA also creates a
comprehensive permit system that applies to major sources of
air pollution, which are those sources emitting more than 100
tons of regulated pollutants each year.128
The CAA applies to CAFOs in theory.129 But in reality, the
CAA still fails to prevent CAFOs from polluting the air. First,
“air emissions from farms typically do not exceed thresholds
specied in the Clean Air Act . . . and thus generally escape most
CAA regulatory programs.”130 Second, regulators at both the
federal and state levels have been lax in enforcing the CAA (and
other environmental laws) against CAFOs. Instead, regulators
“traditionally focused most effort on controlling the largest and
most visible sources of pollution to the water, air, and land—
factories, waste treatment plants, motor vehicles—rather than
smaller and more dispersed sources such as farms.”131 Third,
the CAA Mandatory Greenhouse Gas (GHG) Reporting Rule132
addresses manure management systems, but Congress barred the
EPA from using funds to implement mandatory GHG reporting
for manure management facilities.133 Fourth, there is a dearth
of data.134 The CAA “requires accurate measurement of emis-
sions to determine whether [CAFOs] emit regulated pollutants
in quantities that exceed specied thresholds.”135
Citing a need for such data, the EPA entered into an Air
Compliance Agreement136 with CAFO owners and operators.137
“Early in 2002, representatives of agriculture industry groups—
especially pork and egg producers—approached EPA ofcials
with a proposal to negotiate a voluntary agreement that would
produce air quality monitoring data on emissions from animal
feedlot operations.”138 In exchange for industry cooperation,
the EPA agreed to provide immunity for past and ongoing viola-
tions of the CAA to all participating CAFOs. “EPA granted cov-
enants not to sue and released participants from EPA liability
for failing to comply with certain provisions of the CAA.”139
Critics of the agreement include environmental groups and state
and local air quality ofcials, who were not included in the
negotiation process.140
More than 13,900 operations across forty-two states
signed up to participate in the agreement, including 1,856 pig
operations.141 After the EPA released the data gathered under the
agreement in 2011, an Environmental Integrity Project analysis
showed that “measured levels of several pollutants—particles,
ammonia, and hydrogen sulde—exceeded CAA health-based
8Sustainable Development Law & Policy
standards, worker protection standards, and federal emis-
sion reporting limits at some of the study sites.”142 The EPA’s
methodologies have come under re, however, since the study
failed to include turkey operations, beef cattle operations, or
sprayelds, and collected data from a very small number of
operations.143 Years later, after granting thousands of CAFOs
immunity, the EPA still has not taken steps to use the data col-
lected to better regulate CAFOs under the CAA. This holding
pattern, and the enforcement gap more broadly across federal
law, is likely the result of the politically powerful farm lobby
exerting its inuence.144
b. inDuStry above people: north carolina law
North Carolina law serves CAFO owners and operators in
three main ways. First, the state has eviscerated nuisance as a
cause of action under its so-called “Right-to-Farm” law. Second,
the state has passed an “ag-gag” law intended to prevent the
public from discovering the misconduct and illegal actions of
CAFO owner and operators. Third, the state has lax environ-
mental regulations of CAFOs.
1. insulT To injury: The norTh Carolina “righT-To-
Farm” laW
Property owners have been suing pig farmers for centuries.
In William Aldred’s Case,145 “the Court of the King’s Bench rec-
ognized [a]n action on the case lies for erecting a hogstye so near
the house of the plaintiff that the air thereof was corrupted.”146
Common law nuisance theories remain an essential tool for U.S.
property owners who seek to protect their right to enjoy their
property, even after the development of complex environmental
laws.147 But in North Carolina, nuisance suits against CAFOs
are now an option extinguished and community members are
left without legal remedy.
North Carolina rst enacted its so-called “right-to-farm”
(RTF) law148 in 1979.149 That early version of the law created
an afrmative “coming to the nuisance” defense for preexist-
ing CAFO owners and operators when they faced suits from
community members who purchased property in the CAFO-
occupied community.150 The rationale behind these laws was
that the CAFO was there rst.151
In 2013, North Carolina’s RTF law became a “right-to-
commit-nuisance” law (RTCN).152 Now, a CAFO “may raise an
afrmative defense to liability in a nuisance action regardless of
whether it had undergone a change in ownership, size, or type
of product produced. As a result, agricultural operations may be
able to benet from these protections regardless of whether the
facility actually preceded its neighboring landowners.”153 The
RTCN amendments followed close on the heels of lawsuits led
by hundreds of community members against Murphy-Brown,
LLC154—a subsidiary of Smitheld Foods, Inc.—for the opera-
tion of pig CAFOs in eastern North Carolina, and they will fur-
ther disempower community members to ght the destruction of
their homes and neighborhoods.155
The North Carolina legislature recently pushed through yet
another RTCN bill, overriding Democratic Governor Cooper’s
veto.156 Republican State Representative Jimmy Dixon, whose
campaign nance records reveal that he has accepted $115,000
from the pork industry, sponsored House Bill 467.157 He char-
acterized the bill as “protecting ‘red-blooded, hard-working’
American farmers.”158 Republican State Senator Brent Jackson
sponsored the Senate companion bill, and his campaign nance
records reveal that he has accepted more than $130,000 from
the pork industry.159 Previous North Carolina law provided that
the jury would determine the amount of compensatory damages
in nuisance cases.160 But now, the law “will essentially cap
the damages property owners can collect in nuisance lawsuits
at the fair market value of their property, which critics point
out is often made lower by the presence of those commercial
farms.”161 Thus, this bill severely limits any damages that a
community member might win against a CAFO owner or opera-
tor, which in turn makes challenging CAFOs via nuisance law a
less appealing option.162
2. gagging WhisTlebloWers: The norTh Carolina
“ag-gag laW
Ag-gag163 laws are designed to shield CAFOs from whistle-
blowers and reporters who seek to collect evidence of wrong-
doing. “Ag-Gag bills were designed to place restraints on free
speech by making it a crime to take photos or video on a factory
farm without the written permission of the owner.”164 These
laws are harmful to the public because they thwart undercover
investigations that reveal dangerous and abhorrent activity such
as animal abuse, environmental crimes, and food safety risks
that could sicken millions.165 Without the investigations that
ag-gag laws seek to prevent, the public may not discover such
information until the damage is already done.
Nonetheless, ag-gag legislation is sweeping the nation.166
On January 1, 2016, North Carolina’s ag-gag law167 went into
effect.168 This law is even broader than most ag-gag laws:
The law provides for a civil cause of action against
whistleblowers who seek to inform the public about
matters of public concern in their workplace. This
law will deter whistleblowers in facilities like nursing
homes, hospitals, day cares, schools, and animal agri-
culture from reporting concerning or illegal conduct.169
Organizations, journalists, and employees who conduct
undercover investigations of CAFOs and release evidence
of wrongdoing to the public or to the press will be liable and
could face civil suit and damages.170 This law shrouds CAFOs
in secrecy, making it more difcult for community members to
discover any wrongdoing that CAFO owners and operators are
committing in their backyards.171
3. norTh Carolina regulaTions: indusTry over PeoPle
Despite . . . documented environmental and human
health harms from CAFO pollution, the industry and
its allies have been able to emasculate government pro-
tection of its citizens at every level. Local governments
have been stripped of control in many communities,
9
Fall 2017
preventing them from passing zoning or public health
ordinances to address CAFO pollution. State and fed-
eral permitting and enforcement activity is nonexistent
or weak . . . .172
In the 1980s, a pig farmer turned state senator named
Wendell Murphy, set out to vertically integrate pig farming
in North Carolina.173 He aimed to pass state laws that would
incubate the pig CAFO industry and stymie environmental
regulation.174
In 1986, Murphy helped pass a bill that eliminated the
sales tax on hog and poultry houses; in 1987, the sales
tax was waived on any equipment related to the CAFO
industry. In 1991, county managers from four of the
state’s largest hog counties considered imposing regula-
tions on the hog industry. Instead, Murphy cosponsored
a bill that prohibited them from passing such zoning
ordinances. When the bill passed, CAFO facilities were
protected like traditional family farms.175
Through his legislation, Murphy’s vision of vertical integra-
tion came to pass: though there were 22,000 pig farmers rais-
ing two million pigs in North Carolina thirty years ago, today
there are only 2,300 farmers raising nine million pigs.176 Like
Murphy’s legislation, this trajectory began in the 1980s when
“[t]he number of small, diversied farms fell precipitously. Most
of the farms that survived did so by going big—raising thou-
sands of animals that spend their entire lives inside barns.”177
WH Group, a Chinese corporation that bought out Smitheld
Foods in 2013, is now the dominant corporation behind pig
CAFOs in North Carolina.178
The North Carolina Department of Environmental Quality
(DEQ) regulates the state’s Animal Feeding Operations (AFOs),
which are dened such that they include pig operations with
(1) at least 250 pigs and (2) a liquid animal waste management
system.179 DEQ has also been responsible for “establish[ing]
siting requirements for application setbacks from property
boundaries and perennial streams since 1992.”180 Almost all
permitted pig CAFOs are subject to the regulations of the North
Carolina Swine Waste Management System General Permit
(General Permit), which contains requirements regarding opera-
tion and maintenance, monitoring and reporting, inspections,
performance standards, general conditions, and penalties.181 The
substance of the General Permit comes up for revision every ve
years, and was renewed in 2014 “following extensive public
involvement.”182
DEQ only agreed to regulate CAFOs after the disastrous
lagoon breach of 1995, which dumped more than 20 million
gallons of waste into the New River.183 In 1997, North Carolina
instituted a moratorium on new and expanded pig CAFOs as
a result of the disaster.184 This moratorium became permanent
in 2007 with regard to CAFOs using or proposing to use the
lagoon and sprayeld waste management system.185 The exist-
ing CAFOs, however, are still allowed to utilize this system
under the General Permit.186 DEQ insists that the lagoon and
sprayeld waste system is working because CAFO operators are
limited in the amount of waste they can apply to sprayelds at
once. “All waste must be applied at no greater than agronomic
rates—an amount that can be used productively by the crops
planted.”187 But in January 2015, researchers found that high
levels of fecal bacteria in local waterways are linked to CAFOs,
and state ofcials have only dismissed community members’
concerns.188 DEQ visits CAFOs only once each year, and the
agency has never revoked a permit or shut down a farm.189
IV. the root oF all eVIl: money as the
source oF the enForcement gaP and law
as an Instrument oF oPPressIon
a. Special intereStS
Section III presented the ways in which the law is failing
to protect CAFO-occupied communities and even aids in their
oppression. Big Ag has engineered this failure by maintaining
a stranglehold on the American political process in two ways.
First, Big Ag exploits the image of the wholesome farming
family, almost always portrayed as white, that many Americans
admire.190 By portraying industrial farms as the small family
farms of yore, the Big Ag lobby successfully controls public and
political opinion. Second, Big Ag spends tremendous amounts
of money inuencing members of Congress.
The American Farm Bureau Federation (AFBF), rated by
Fortune magazine as one of the top twenty-ve most powerful
special interest groups in the United States, is a prime example
of how Big Ag lobbying groups control the political process.191
“The [AFBF] promotes the interests of farm corporations
in Washington D.C., and in state capitals. For decades, they
have spent millions ghting environmental regulations of all
kinds.”192 And because Big Ag has convinced the country that
industrial farms are small family farms, it is all too easy to char-
acterize environmental regulations as the big boot of the Federal
Government standing on the little guy’s throat. Ron Prestage,
President of the National Pork Producers Council, recently said
of the proposed Clean Water Rule: “[T]his regulation isn’t about
clean water. This massive land grab is about federal control of
private property, growing the size of government and allowing
activists to extort and micromanage all kinds of farming and
business activities.”193
And then there is money. “[Q]uestions about whether
environmental laws should apply to CAFOs continue to give
rise to controversy in Congress and the states, and the $297 bil-
lion and growing agricultural industry maintains an extensive
bench of lobbyists to take advantage of that controversy.”194
Between 2005 and 2010, Big Ag spent $126.9 million lobby-
ing Congress and federal regulatory agencies.195 AFBF alone
spent $33.6 million and employed fty lobbyists who spent
their time ghting the Clean Water Act and other rules affect-
ing CAFO pollution.196 In 2016, Big Ag spent $127,592,310
lobbying.197 Big Ag directed the majority of that money to
Republican politicians, including $2,702,601 to then-Repub-
lican presidential candidate Donald J. Trump.198 Finally, Big
10 Sustainable Development Law & Policy
Ag receives an average of $38.4 billion in farm subsidies (also
known as “corporate welfare”) per year.199
b. north carolina: “captureD by the inDuStry200
North Carolina makes no secret of its allegiance to Big Ag.
In 2015, then-Governor Pat McCrory attended a rally held by the
pork industry. “McCrory told those at the industry rally,” which
was held to oppose lawsuits over the industry’s environmental
practices, that the “state government would ght for them.”201 A
Pulitzer Prize-winning investigative series on the North Carolina
pork industry revealed that the industry and the government
have been close since the beginning:
In a seven-month investigation, The N&O found that
state agencies aid the expansion of pork production but
are slow to act on a growing range of problems result-
ing from that increase. The industry has won laws and
policies promoting its rapid growth in North Carolina.
It also has proted from a network of formal and infor-
mal alliances with powerful people in government.202
One explanation for this closeness is that when the North
Carolina tobacco industry went into decline in the 1980s, the
burgeoning pork industry lled the void.203 But whatever rea-
son, one thing is clear: North Carolina is prioritizing industry
over community—especially communities of color.
V. north carolIna: FIghtIng back and
grassroots growth
Poor people, and people of color especially, continue
to suffer from the horrible conditions brought on by
the industrial hog industry . . . . People just can’t
ignore this.204
Members of CAFO-occupied communities have pleaded
with North Carolina government ofcials for years. “[C]ommu-
nities have repeatedly asked [DEQ] for stronger protections.
Citizens have tried to reach a resolution with government of-
cials that is agreeable to neighbors, regulators, and the industry.
Some have brought civil complaints for nuisance and trespass
against individual facilities.”205 Advocacy organizations, includ-
ing North Carolina Riverkeepers, Waterkeepers Alliance, North
Carolina Environmental Justice Network (NCEJN), and Rural
Empowerment Association for Community Help (REACH),
have all joined in the ght to take back these communities from
CAFO occupation.206 But alas, “over the decades, complaints
have largely fallen on deaf ears.”207
a. community organizing anD information
gathering
Community members rallied together and armed themselves
with information. Devon Hall, who was one such community
member, co-founded REACH in 2002 and began collaborat-
ing with Professor Steve Wing, a public health professor at the
University of North Carolina.208 Hall and Wing (the researchers)
worked alongside community members to gather valuable data
for their ght against CAFOs.209
In the Duplin Health Awareness Project,210 the rst of ten
such studies, the researchers set up equipment in neighborhoods
within a mile of CAFOs to monitor the air quality for toxins and
PM.211 Then, the researchers instructed community members to
sit outdoors and note odor intensity and their own daily stress
levels.212 At the same time, the community members tracked
their own blood pressure and lung function with medical equip-
ment.213 They recorded all of the data they collected about their
surroundings, health, and well-being.214 The researchers and the
community members were able to develop data proving what
the community members already knew from experience: there
are “correlations between hog waste and asthma and other respi-
ratory problems, such as bronchitis, along with compromised
immune systems and increased stress and anxiety.”215
REACH took further action to monitor air and water and
to organize the community. First, the organization worked with
Waterkeeper Alliance, who deployed Riverkeepers to take water
samples from area waterways.216 Additionally, the collaborators
created maps of the CAFOs and lagoons and patrolled the com-
munity to record violations of the General Permit, such as when
CAFO operators spray manure on the sprayelds before or dur-
ing a storm.217 Finally, REACH went door-to-door in communi-
ties to distribute fact sheets and unite neighbors. “‘We told them,
this is how many pigs live around you, and this is who’s mak-
ing the money. We got good at mobilizing the community.’”218
Ultimately, the community utilized the information and data
they collected to try to prevent DEQ from renewing the General
Permit in 2014.219 While they did not succeed in preventing
the renewal, their efforts did come to fruition in 2007 when the
North Carolina legislature made the moratorium on new lagoon
and sprayeld CAFOs permanent.220
But community mobilization and investigative efforts are
not without risk. CAFO operators harassed water samplers.221
Community members reported that CAFO operators subjected
community members who spoke out to several intimidation
tactics, “including sustained tailgating, yelling, threats of gun
and other physical violence, and driving back in forth in front
of their houses.”222 When community members called DEQ
to report illegal spraying during or before a storm, they were
rewarded with calls from disgruntled CAFO operators after DEQ
informed them of the complaint.223 Such complaints are con-
dential—but nonetheless, DEQ regulators sometimes choose to
expose those who make them.224 In the most egregious incident
of harassment, a CAFO operator entered “the home of an elderly
African American woman and sh[ook] the chair she sat in while
threatening her and her family with physical violence if they
continued to complain about the odors and spray.”225
b. civil rightS complaint
In March 2014, DEQ ignored community pleas and renewed
the General Permit that allowed CAFOs to continue using
lagoons and sprayelds as waste management.226 This was the
last straw for North Carolina activists. “‘We’ve been asking the
state and our representatives for years to do something differ-
ent about how this industry operates in the state,’ says NCEJN’s
11
Fall 2017
Muhammad. ‘It was an insult to the community and to the people
of the state of North Carolina to renew those permits.’”227
In September 2014, Earthjustice and the University of North
Carolina Center for Civil Rights, representing Waterkeeper
Alliance, NCEJN, and REACH (Citizens), led a complaint
(“Complaint”)228 in the EPA External Civil Rights Compliance
Ofce (ECRCO) (formerly the Ofce of Civil Rights) under
Title VI of the Civil Rights Act of 1964 (Title VI)229 and its
implementing regulations.230 Under Title VI, state regulatory
programs that receive federal funding may not operate in such
a way that disproportionately impacts communities of color in
a negative way.231 In their Complaint, the groups allege that
“the State’s lax regulation of hog-waste disposal discriminates
against minority communities in eastern North Carolina, and
that its [Department of Environmental Quality’s] recent permit
allowing thousands of hog facilities to function without adequate
waste-disposal controls violates federal law.”232
In February 2015, ECRCO began investigating DEQ on
the basis of the Complaint.233 In March, the Citizens and DEQ
agreed to enter into alternative dispute resolution, funded by
the EPA.234 As the January 2016 mediation date approached,
the National Pork Council and the North Carolina Pork Council
moved to intervene—a troubling development for the Citizens,
since the negotiations were condential.235 The Citizens objected
to industry involvement in the mediation:
On behalf of our clients, who were adamant that the
Pork Council should not be at the table—this was
not about them, it was about DEQ’s responsibility to
protect the environment and health and safety of the
people of North Carolina—we said no, there’s no place
for you here.236
Nonetheless, the National Pork Council and the North
Carolina Pork Council appeared at the session, and DEQ made
it clear that the agency supported their presence during nego-
tiations.237 Earthjustice attorney Marianne Lado declined to
“speculate on whether DEQ told the pork councils about the
mediation, but added that the agency ‘tried to normalize the
problem and suggest that it was acceptable for pork councils to
be there. [DEQ] didn’t act surprised that they were there.’”238
The Citizens were concerned about exposing the identities of
the community representatives present at the meeting, due to
the pork industry’s long history of intimidating residents.239 The
Citizens withdrew from mediation in March 2016 and the nego-
tiations broke down.240
In May 2016, ECRCO reinstated its DEQ investiga-
tion.241 The Citizens led an additional complaint (“Second
Complaint”)242 against DEQ in July, alleging that the agency
“engaged in and failed to protect [the Citizens] from intimida-
tion, which is prohibited by Title VI and EPA regulations, 40
C.F.R. § 7.100.”243 The Second Complaint discussed the long
history of the pork industry using intimidation tactics against
residents of eastern North Carolina.244 In August, ECRCO
agreed to investigate DEQ based on the Second Complaint.245
DEQ requested that the original Complaint be dismissed, but
ECRCO declined to do so.246 In October, twenty community
representatives drove to Washington, D.C., to share their story
with EPA and members of Congress.247 A month later, ofcials
from ECRCO toured the area and listened to residents with
Senator Cory Booker, a member of the Senate Environment and
Public Works Committee.248
Finally, in January of 2017, ECRCO took an “unprecedented
step”249 and sent an ofcial Letter of Concern to DEQ.250 In the
letter, ECRCO expressed “deep concern about the possibility that
African Americans, Latinos, and Native Americans have been
subjected to discrimination as the result of NC DEQ’s opera-
tion of the Swine Waste General Permit program, including the
2014 renewal of the Swine Waste General Permit.”251 ECRCO
also expressed “grave concerns about these reports indicating a
potential hostile and intimidating environment for anyone seeking
to provide relevant information to NC DEQ or EPA.”252 ECRCO
made several recommendations to DEQ:
Assess the Swine Waste General Permit to determine how
it should be changed to substantially reduce impacts on
nearby residents. The EPA also asked for a timeline.
Assess current regulations on industrialized hog farms
and determined what could be changed. If the DEQ
claims it doesn’t have the authority to change a rule, it
needs to show evidence of the impediment.
Evaluate risk management options, such as covering the
lagoons, not using dead boxes [a holding pen for hog car-
casses] and not spraying on the weekends.
Assess current swine waste technologies and what could
be adopted.
Conduct an internal evaluation of DEQ’s enforcement
and compliance of industrialized hog farms. If corrective
measures are needed, deliver a timetable to do so.
Evaluate its non-discrimination program if its [sic] in
place, using a federal checklist. If the program hasn’t
been established, DEQ is to correct the deciencies.253
While the Letter of Concern is not the rm decision that
community members had hoped to receive, they are pleased
that people are taking notice of the community’s plight.254 And
there is reason to remain hopeful: “the agency’s pointed, harsh
letter and its ongoing investigation—plus a new administration
at DEQ—could tip the scales toward environmental justice.”255
c. overcoming in a time of aggreSSive regreSSion
In November 2016, Donald J. Trump was declared the vic-
tor of the 2016 United States Presidential Election.256 At the
same time, both houses of Congress remained under Republican
domination.257 As a result, both the Executive and Legislative
branches of the Federal Government now seek to greatly reduce
or eliminate the EPA, and the President’s budget proposal
included an External Civil Rights Compliance Ofce reduc-
tion of $268,000 and eleven full-time employees.258 The EPA
has issued a plan to lay off 25% of its employees and eliminate
fty-six programs.259 Thus, it may be necessary for communities
seeking to protect themselves from CAFOs to focus on state law
in the foreseeable future.
12 Sustainable Development Law & Policy
North Carolina is an ideal state for such action. The com-
munity has succeeded in generating tremendous publicity, which
will make it more difcult for state legislators and DEQ to con-
tinue to ignore their pleas. Roy Cooper, a Democrat and former
Attorney General of North Carolina, unseated Pat McCrory in
the state’s 2016 gubernatorial race.260 This change may give
community members the toe-hold they need to take back their
state from Big Ag, even if EPA fails them going forward.
There are several ways community members might move
forward in this ght at the state-level. First, they may campaign
to repeal the so-called “right-to-farm” law and the ag-gag
law. Second, they may continue to exert pressure on DEQ to
update the General Permit and ban lagoon and sprayeld waste
management systems. In the (weaker) alternative, they may
campaign for lagoons to be covered and for sprayelds to be
rigorously inspected to avoid runoff. Third, they may leverage
the EPA Letter of Concern to DEQ and petition DEQ to adopt
EPA’s recommendations. Fourth, and perhaps most importantly,
the communities may campaign to replace the Republican mem-
bers of the North Carolina legislature with representatives who
would aid them in their ght against CAFOs.
The fourth objective is likely to be difcult at present,
however, as there is evidence that the Republican legislature
suppresses the votes of North Carolinians of color261 and gerry-
manders districts along racial lines.262 Fortunately, lawsuits have
challenged both of these barriers to the full participation and
representation of marginalized North Carolina communities.263
With the help of the federal courts, the communities may be able
to change the makeup of their legislature and ensure that their
representatives actually represent them and not Big Ag.
VI. conclusIon
CAFOs are major polluters that exploit and endanger the
vulnerable communities they occupy. Therefore, they must be
treated as such at both the federal and state levels. CAFOs should
be strictly regulated as major polluters and should be subject to
strict siting regulations that protect vulnerable communities like
those of the North Carolina Coastal Plain.
To break down the political barriers that prevent these
essential regulations from coming to fruition, it is necessary to
attack the corrupting inuence of corporate money in politics.
So long as the farm lobby can buy politicians to guard and pro-
mote the interests of Big Ag, including the corporate welfare the
industry siphons from taxpayers in the form of subsidies, it will
be impossible to make meaningful progress in this arena.
Likewise, it is necessary to challenge and change the nar-
rative that CAFOs are family farms with happy pigs dotting
their pastureland. This lie, which depends upon the American
tradition of exalting the white, rugged farmer of yesteryear, has
proven wildly successful and forms the foundation of the CAFO
house of cards. The rst step in challenging and changing this
narrative is to unmask CAFOs and Big Ag. Their true faces are
those of massive industry, not small business. Once unmasked,
it will become politically feasible to regulate this industry
appropriately. Such regulation has the potential to ensure that the
industry’s access to our economic infrastructure and society is a
privilege that will not be to the detriment of the most vulnerable
among us, including non-human animals.
In this time of great political turmoil, the North Carolina
communities have modeled a path forward: grassroots organi-
zation and mobilization. By forging connections among neigh-
bors, researchers, advocacy organizations, and public interest
law rms, the communities created a formidable coalition of
justice-minded people. While it may be that EPA is of little
help going forward, these communities can continue to ght
CAFOs at the state level. With Mr. Cooper in the Governor’s
Mansion, they just may be able to get enough traction to make
change in their state.
More broadly, Americans must recognize and resist
the vast destruction that CAFOs cause. CAFOs fuel climate
change, wantonly torture sentient non-human animals, and
harm human health. Big Ag manipulates our political system
and exploits taxpayers for tremendous prot. And, as the case of
North Carolina demonstrates, CAFOs are cogs in the machine
that has systematically oppressed communities of color for
centuries. While comprehensive CAFO regulation (or, ideally,
elimination) will increase the cost of animal products at the
checkout counter, the status quo is a cost that communities of
color cannot continue to bear.
enDnoteS
1
Liam H. Michener, Note, Meating America’s Demand: An Analysis of the
Hidden Costs of Factory Farming and Alternate Methods of Food Production,
7 j. animal & envtl. l. 145, 147 (2016) (citing Farmed Animals and the Law,
animal legal Def. funD, http://aldf.org/resources/advocating-for-animals/
farmed-animals-and-the-law/ (last visited Oct. 24, 2017)); Farm Animal Wel-
fare, am. Socy for the prevention of cruelty to animalS, https://www.aspca.
org/ght-cruelty/farm-animal-cruelty/what-factory-farm (last visited Oct. 24,
2017).
2
Michener, supra note 1, at 146–47.
3
40 C.F.R. § 122.23(b) (2012).
4
Animal Feeding Operations, uSDa, https://www.nrcs.usda.gov/wps/por-
tal/nrcs/main/national/plantsanimals/livestock/afo/ (last visited Dec. 20, 2017).
5
Id.
6
§ 122.23(c).
7
See id. § 122.23(b)(4) (dening “Large CAFO”); see also id. § 122.23(b)
(6) (dening “Medium CAFO”).
8
Michener, supra note 1, at 147.
9
Id.; see generally Pork Facts, natl pork proDucerS council, http://nppc.
org/pork-facts/ (last visited Dec. 20, 2017) (noting that the pork industry boasts
that it butchers an average of 115 million individual pigs each year, twenty-six
percent of which are exported to other countries).
10
DaviD robinSon Simon, meatonomicS: how the riggeD economicS of
meat anD Dairy make you conSume too muchanD how to eat better,
live longer, anD SpenD Smarter xxii (2013).
continued on page 43