But with a court appeal about to be heard, will the judgments for the North Carolinians hold up?
By Barry Yeoman, December 20, 2019
In a federal courtroom in Raleigh, North Carolina, a 14-year-old honor student named Alexandria McKoy swore to tell the truth. Then she settled in to testify against the world’s largest pork producer.
McKoy had traveled 90 miles from Bladen County, part of the flat and farm-heavy coastal plain that covers most of eastern North Carolina. Her family lives on a sandy cul-de-sac that recedes into a driveway flanked by “No Trespassing” signs. Her mother grew up on that land, working in the fields with her sharecropper father and playing in the woods nearby.
In the mid-1990s, a farmer named Billy Kinlaw bought the property at the end of the road. He built a dozen swine houses and three waste lagoons, large open pits that hold a slurry of feces and urine turned pink by bacterial action. Kinlaw began raising pigs, with a permit to house more than 14,000 at a time, most recently under contract to Murphy-Brown, the hog production subsidiary of Virginia-based Smithfield Foods.
Many of the farms are near the homes of African American families like the McKoys. The journal Environmental Health Perspectives, which is funded by the federal government, described the smell in these rural communities as “reminiscent of rotten eggs and ammonia.”During the late 20th century, as the tobacco economy declined, farms like Kinlaw’s transformed North Carolina into the country’s No. 2 hog production state, after Iowa. The state’s 2,300 swine operations are responsible for most of the 10 billion gallons of wet livestock waste generated in North Carolina, according to a 2016 analysis by the Environmental Working Group and Waterkeeper Alliance, an international clean water group. There are roughly 3,300 waste lagoons, which occasionally overflow or breach their walls, particularly during hurricanes.
Hog houses outside of Wallace, North Carolina. Neighbors of hog farming operations have pursued court battles against the smell of hog waste.
McKoy’s bedroom was close enough to the farm, she testified, that she could hear the animals squeal. “Like screeching—a screeching noise,” she said. She added that she could smell their waste, too, and tried to mask it with an air freshener and scented candles. Hog farm neighbors often complain that the odor, while intermittent, is so overpowering that they cannot tend their gardens, hang their laundry, or invite relatives over for cookouts. Industrial farms, they say, also bring flies, buzzards, and intense truck traffic day and night.
In 2014 more than 500 North Carolinians, most of them African American, blitzed Murphy-Brown with more than two dozen federal lawsuits. The plaintiffs included McKoy, her mother, and her elder brother. They argued that Smithfield, which dominates the state’s swine industry and owns the animals raised under the company’s contracts, has the resources to phase out the prevailing waste management system, which involves storing the pigs’ feces and urine in lagoons and then spraying it onto fields as fertilizer. They said the company can dispose of waste in less noxious ways but refuses to do so.
The plaintiffs accused Smithfield of creating a “private nuisance,” which the North Carolina Supreme Court has described as an “invasion” of someone’s “private use and enjoyment of land.”
Smithfield called the complaints exaggerated and the alternatives too costly. It described the lawsuits as “a money grab by a big litigation machine.” In April 2018, Smithfield defense attorney Mark Anderson told jurors that the case wasn’t really about the plaintiffs at all. “These are good people,” he said. “They are here because of other people’s agendas.”
On the witness stand, McKoy recounted the things she couldn’t do outdoors: practice her flute, ride her bike, and sit on her grandmother’s porch and read. (At the time, she was enjoying a novel about a werewolf.) Recently, she said, she invited a classmate over, and they got off the school bus to an awful stench. “Where is that smell coming from?” her friend asked. “Is it coming from your house?”
Other children, McKoy testified, covered their faces with their shirts as the bus approached her house. Or they peered out the windows, trying to find the source. “I don’t want people to remember me by a smell,” she said.
For three weeks, the jury listened to dueling narratives. Some neighbors described their diminished lives. Others, including a couple that attended oyster roasts and pig pickings at the Kinlaw farm, insisted there was no offensive odor. Jurors watched video testimony of Steve Wing, an epidemiologist who died before the trial, describing the headaches, coughing, and nausea he found in higher numbers among hog farm neighbors than among cattle farm neighbors and those who didn’t live near intensive livestock farms. Wing spent two decades documenting the harms, including asthma symptoms and elevated blood pressure, suffered by those living or attending school near swine operations.
Submitted in one of the court cases in North Carolina, this picture shows the proximity of a box to hold dead hogs and a neighbor’s swing set.
Wing, who was an associate professor at the University of North Carolina, described a letter he received from lawyers representing the North Carolina Pork Council. That letter demanded the confidential identities of the people interviewed for his study.
Anderson told jurors that North Carolina’s hog farms are “highly regulated.” Don Butler, a retired Smithfield executive, acknowledged writing a 1999 memo explaining that the state’s new odor rules, which he helped shape, “are so vague and subjective that enforcement will be difficult. This may be to our benefit.”
The jury came back with a knockout verdict: Not only was Smithfield responsible for its neighbors’ suffering, but it had also acted wantonly enough to warrant punitive damages. The jury awarded the 10 plaintiffs $50.75 million combined, though the award was reduced to $3.25 million because of a state cap on punitive damages.
It was the first of five trials in 2018 and 2019—bellwether cases for the other suits. Smithfield lost all five, even the two for which it chose the plaintiffs. It was assessed wildly different damage awards, from $102,400 to $473.5 million. The latter was scaled back to $94 million because of the cap.