Taking the Whole Hog: How North Carolina's Right-to-Farm Act Strips Access to Nuisance Suits for Vulnerable Communities

• Author: Andie D'Angelo
• Position: Elisabeth Haub School of Law at Pace University, J.D. 2022, L.L.M 2022; New York University, B.A., Environmental Justice and Environmental Studies, 2019
• Pages: 141-165

Taking the Whole Hog: How North Carolina’s

Right-to-Farm Act Strips Access to Nuisance Suits

for Vulnerable Communities

ANDIE D’ANGELO*

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

I. The History of Hog Production In North Carolina . . . . . . . . . . . . . . . . . 143

II. Inequality in Hog Farming: The impact of CAFOs on Low Income and

BIPOC Communities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

A. Importance of Black Landownership in Southern States . . . . . . . . . 147

B. Mental and Physical Impacts of Living Near CAFOs . . . . . . . . . . . 148

C. Environmental Justice, Hog Farming, and Barriers to Administrative

Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

III. Historical Significance of Nuisance Litigation in Farm Disputes . . . . . . . 153

IV. The Right to Farm Law: Limiting Access to Traditional Nuisance

Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

A. Durham v. Britt and the 2013 RTF Amendment: Defining “Change in

Condition”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

B. Mckiver v. Murphy-Brown LLC and the 2018 Amendment: Severely

Limiting Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164

INTRODUCTION

In North Carolina, industrial hog farming is king. Pork production contributes

approximately three billion dollars to the state economy each year, and state

legislators laud the industry as an important element of North Carolinian culture.

1

However, the impacts and benefits of hog farming are not shared equally by resi-

dents of the State. For example, Duplin County, where pigs outnumber humans

nearly forty to one, has the highest concentration of Latinx community members

* Elisabeth Haub School of Law at Pace University, J.D. 2022, L.L.M 2022; New York University,

B.A., Environmental Justice and Environmental Studies, 2019. © 2022, Andie D’Angelo. I would like to

thank Professor Margot Pollans for her brilliant guidance through the research and writing process. I

also extend thanks to my family and friends for their unwavering support during my academic career.

1. N.C. STATE UNIV. COLL. OF AGRIC. & LIFE SCI’S., ECON. CONTRIBUTION OF N.C. AGRIC. &

AGRIBUSINESS 24 (2015), https://perma.cc/ZS5U-84RB (stating that hogs and pigs contribute $2.8

billion in sales each year).

141

in the State. Moreover, approximately a quarter of the county identifies as Black.

2

The foul odor of waste lagoons and the squealing of angry pigs make it nearly

impossible for most residents living near hog farms to line dry their clothing,

open their windows, and spend time outside their own homes.

3

The impact of hog

waste on these communities has been both mental and physical. Residents living

near these farms have higher rates of depression and respiratory illnesses than

other communities in the State.

4

These injustices caused by industrial agribusiness have flourished owing to the

extremely restrictive Right-To-Farm (“RTF”) legislation employed by the State.

All fifty states have some form of RTF legislation, which provides varying

degrees of protection for farmers in nuisance litigation. In North Carolina, the

Legislature has promulgated continually harsh RTF legislation to counter judicial

action against agribusiness.

5

The current RTF, modified in 2018, only allows

those living within one-half mile of the claimed nuisance to file suit.

6

In addition

to these extremely narrow geographic requirements, the State’s RTF has a restric-

tive statute of limitations that only allows suits up to one year after the establish-

ment or significant alteration of the agricultural operation.

This Note discusses the ongoing struggle to achieve justice for communities

inundated by the stench of the hog industry in North Carolina. Part I describes the

history of hog production in North Carolina and illustrates how the agricultural

economy of the State, once centered around tobacco production on owner-oper-

ated farms, was transformed into an industrial haven for large pork producers.

Part II illustrates how the increased industrialization of hog farming has created

an environmental justice crisis and burdened primarily low-income Black,

Indigenous, and people of color (“BIPOC”) communities in the State.

The following Sections discuss nuisance litigation in relation to farming dis-

putes in North Carolina. Part III establishes the historical significance of nuisance

as a remedy for obstruction of peaceful enjoyment of one’s property caused by

animal operations. Part IV discusses the progression of North Carolina’s Right to

Farm Act (“RTF Act”), originally passed in 1979. The law began as a codification

of the “coming to a nuisance” defense for agricultural defendants in nuisance liti-

gation, but it has been strengthened over time by the State legislature to the detri-

ment of those living in communities around these industrial hog facilities. This

Part goes on to discuss the judicial interpretation of the RTF Act before major

2. Duplin County North Carolina, THE UNITED STATES CENSUS BUREAU (2021), https://www.census.

gov/quickfacts/fact/table/duplincountynorthcarolina/PST045219 (Census data affirming demographic

information).

3. Wendee Nicole, CAFOs and Environmental Justice: The Case of North Carolina, 121 ENV’T

HEALTH PERSP. 182, 183 (2013).

4. Julia Kravchenko et al., Mortality and Health Outcomes in North Carolina Communities Located

in Close Proximity to Hog Concentrated Animal Feeding Operations, 79 N.C. MED. J. 278 (2018).

5. See McKiver v. Murphy-Brown LLC, 980 F.3d 937, 954–58 (4th Cir. 2020).

6. An Act to Make Various Changes to the Agricultural Laws 2018 North Carolina Laws S.L. 2018-

113, Section 106-701(a)(2) (S.B. 711) (2018) (codified as N.C. GEN. STAT. § 106-701(a)(2)).

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