Presented to the Seminar:
Environmental Justice: A Challenge for the 21st Century

at the 72nd Annual Convention
of the National Bar Association

July 30, 1997

by David H. Harris, Jr. [1]
Executive Director
Land Loss Prevention Project

© 1997 Land Loss Prevention Project

Environmental racism manifests itself in rural communities primarily in: (1) the construction and operation of intensive livestock operations in or near people of color communities; (2) labor practices dangerous to workers (including factory workers and farmworkers); and (3) the placement of landfills, incinerators, and other noxious production and waste facilities in or near people of color communities and low-income communities. This paper will focus on the placement of industrial-sized livestock operations in people of color communities and low wealth communities. Much of the discussion will focus on North Carolina as an example, but the same facts are true in several states. The same economic neglect that makes people of color communities and low-income communities prime targets of the usual polluting industrial activities also makes them prime targets of the environmental harm caused by agribusiness’ efforts to monopolize our food supply through unsustainable production methods.

It may be a 700,000 hen operation that produces millions of eggs per day. It may be a diary operation of 5,000 or more cows located in California or New Mexico. It may be a hog operation of 70,000 full grown hogs in North Carolina or Missouri. The trend is the same -- the industrialization of agriculture by a few corporations, building monopolies and controlling all aspects of production and marketing, from egg to grocer shelf, displacing hundreds of thousands of farmers, mistreating farmworkers and processing plant workers, and using methods of production that often make the food unsafe to eat.

However, are factory farms and the industrialization of agriculture an environmental justice issue? It depends on the placement and who is impacted. The placement of mega-beef operations in remote parts of the Southwest where the only neighbors are rattle snakes is not an environmental justice question (except to the rattle snakes). However, the placement of factory hog operations in short distances to African American churches, day care centers, and whole communities is clearly an environmental justice question.

A. Growth In Swine CAFOs in North Carolina.

The bulk of the growth in hog inventory nationally since 1991 has been in North Carolina. The number of hogs on North Carolina farms has multiplied from 3.7 million at the end of 1991 to over 9.5 million currently -- moving the state from sixth to second in the nation in hog production. This growth has all occurred in very large concentrated animal feeding operations (CAFOs)[2] -- housing 1,000 to 60,000 or more hogs in confined feedlots.[3] In North Carolina CAFOs marketing 2,000 or more hogs annually accounted for only 9.3% of all producers, but owned 90% of the total inventory in the state.

The bulk of these operations is located in rural Eastern North Carolina communities. Also, the greatest concentration of people of color is in rural Eastern North Carolina communities.

Driven by production economics,[4] state and federal agricultural and tax policies that favor industrial farming operations to the economic detriment of family farms, and ineffective environmental protection activities by the Environmental Protection Agency (EPA), this mushrooming growth endangers the future of family hog farming in North Carolina and several other states, and poses a grave threat to the economic well-being of rural communities. While North Carolina’s hog inventory has grown 304% since 1984, the number of hog farmers has declined 71%. Smaller hog operators who do not use confined feeding lots, independent hog operators that are not under contract to vertical integrators, and people of color hog operators are now almost extinct in the state. Exacerbating the situation is violations of the Packers and Stockyards Act[5] and other unfair trade practices that go unchallenged. Lax enforcement of environmental and antitrust laws has allowed integrators (meat processing companies) to force independent operators out of business, and to treat their own contract farmers (who also absorb a large portion of the risk of the operation) like surfs.

B. Environmental Consequences of Swine CAFOs.

Rural communities face more than the economic threat from the unregulated growth in factory hog farming. Factory hog farms also pose a lethal danger to the environment and public health; threatening air quality,[6] threatening drinking water safety, threatening safety of consuming fish caught in rivers, increasing pest infestation, and creating noxious odor and solid waste problems.

According to recent estimates, a single CAFO with 10,000 full grown hogs requires the same amount of waste treatment as a city of 17,000 people.[7] Likewise, the waste produced by 8 million full grown hogs requires as much waste treatment as that of 15 million people -- more than the populations of Virginia, North Carolina, and Arkansas combined.[8] Because hog waste contains more concentrated organic matter than human waste (and antibiotics and other chemicals harmful to humans in large doses), and contains metals like copper and zinc, proper treatment and disposal are essential to safe production at these sites.[9]

Despite the high level of dangerous waste produced by swine CAFOs, the prevailing method of waste treatment remains only about as sophisticated as rural residential septic tanks. Storage in anaerobic lagoons containing tens of millions of gallons of waste are the primary method of waste treatment. The lagoons, lined with clay, often leach toxins into the groundwater. Up to half of the existing lagoons in North Carolina may leak badly enough to contaminate groundwater, according to research performed by North Carolina State University.[10] Considering the fact that 70 to 90 percent of rural residents drink well water (groundwater), the picture is not appealing. This contamination directly threatens the health of the rural residents who drink well water. The excess nitrates that seep into the groundwater have demonstrated health impacts and are cause for concern. Nitrate contaminated drinking water can cause blue baby syndrome in infants, a sometimes fatal disease.

Hog waste lagoons, like earthen dams, do break at times. During the summer of 1995, there were seven major spills from waste lagoons in North Carolina, six of which were hog-related. As a result of these spills, more than 30 million gallons of hog waste poured into the waterways, resulting in massive fish-kills.[11] The last count was over 15 million fish killed in the state’s rivers that year. Subsequent inspections by the North Carolina Department of Environment, Health, and Natural Resources showed a large number of waste lagoons in poor condition. Because facilities and disposal methods are grossly inadequate to accommodate rapid expansion of the industry, and enforcement of existing laws is relatively lax, and because the full health impacts of this method of production have not been assessed, a major pollution time-bomb is set to explode.

Air pollution is a lesser known but very serious problem. The evaporation of large amounts of ammonia gas and hydrogen sulfide into the atmosphere creates severe air quality and pollution problems. The emission of dust and particles that contain biological contaminants is also significant. Both workers and community residents experience breathing problems, though long term effects are not yet documented. Further damage to the ecosystems of river basins may also occur as a result of nitrates that return to the system as nitrogen-rich rain.

The liquid portion of the waste is removed from the lagoons and sprayed upon spray fields as fertilizer.[12] The spray fields are often over-saturated, leading to runoff into the surface water. Hog CAFOs have already caused considerable surface water pollution. At many sites, hog waste has been illegally discharged into nearby water bodies, through direct piping from lagoons and from field runoff, causing algal blooms, fish kills, and dying aquatic vegetation. Many of these water bodies drain into larger waterways, such as the Cape Fear River and the Pamilco Sound, where larger communities obtain their drinking water.

Many poor and working class individuals use these same streams and rivers to fish for food. Reports of damage to fish are increasing. Yet people who have not been adequately warned of the danger, or who have no economic alternative, continue to eat the fish that for many years has been an important protein source in their diet.

In addition to the breathing problems for workers and residents, the intense odor from intensive swine operations has other public health implications. Many people can no longer open their windows, work in their yards, wait for school buses or play outside due to the terrible smell. Concern over public health was sufficient to cause the North Carolina General Assembly to commission a report on swine odor and water contamination by North Carolina State University. The final report indicates that odor problems are indeed an issue that the hog industry needs to address. Other public health threats include the increase in the number and disease-carrying capacity of flies and other insects.

Neighboring farmers and landowners, who are most intensely exposed to these hazards, harbor grave concerns about the detrimental effect of these operations on their property values and quality of life. Recent studies indicate that these concerns are not without justification. Increasingly, rural communities are grappling with the negative effects this industry has on the economic and environmental health of their area. Poor and people of color communities who often have not had role in the decisions that bring these facilities to their areas have been hit particularly hard by problems created by factory hog operations.

Because factory swine operations are considered agricultural operations, they have enjoyed many exemptions from environmental regulatory checks, including zoning laws that apply to industrial operations, towns, and even private homes. In addition, agribusiness remains a powerful economic force in North Carolina, holding out the promise of economic prosperity and jobs for rural communities. Before 1996, policy-makers in North Carolina and other states in the South had enacted few laws to regulate the industry, and the laws subsequently enacted in 1996 are insufficient to protect people in neighboring communities. Many other states, especially in the Midwest, are considering relaxing their current environmental and anti-corporate farming laws to allow them to keep up and compete with North Carolina’s booming growth in the hog industry. This will endanger their own communities.

Although large, the CAFOs have managed to avoid the requirement to acquire an NPDES[13] permit by staying below the size threshold or claiming that they do not discharge into the surface water. This fact and lax state compliance with EPA mandates have made EPA’s 20 year old regulations very ineffective.[14]

With few state and federal controls, but with a concentration of money and political power, the owners of CAFOs have become a powerful political force in Eastern North Carolina. They have located operations in counties that have very high percentages of people who have been traditionally disenfranchised, people of color and poor, and who have virtually no say in how these operations are affecting their lives. The public health, environmental, and economic concerns of these populations remain largely unaddressed by state and county agencies.

In response to these threats, local communities are organizing to oppose the construction and operation of CAFOs, and to urge county and state governmental officials to enact more ordinances, regulations, and statutes. These communities have called for, and urgently need the assistance of lawyers to respond with the type of regulatory advocacy, legislative advocacy, and litigation needed to address these problems.

Be not deceived: CAFOs are not farms. They are industries; industries that produce hazardous waste. The non-regulation of the waste management systems used by CAFOs has a significant negative impact on communities. In the southeastern states, including North Carolina, the swine CAFOs and other types of CAFOs, are largely sited in people of color communities and low income communities. One only has to place the operations on a census map. The 15 top hog producing counties in North Carolina are all located in Eastern North Carolina and have high concentrations of Blacks.

As with other forms of environmental attack a number of different civil rights and environmental laws should be considered in attacking CAFOs that have been placed in people of color communities. Title VI[15] (if the facility is owned by a land grant university) and Title VIII[16] are clear candidates, as are the Clean Water Act[17] and the Clean Air Act. Several tort theories available under state law should be considered, including nuisance, trespass, and intentional infliction of emotional distress. Decrease in property value may be a claim for relief or a remedy, depending on the jurisdiction.

Nuisance is being used in increasing frequency to attack CAFOs. "Nuisance" has been generally defined as "anything done by one which annoys or disturbs another in the free use, possession, or enjoyment of his property, or which renders its ordinary use or occupation physically uncomfortable."[18] Neighbors of a hog farm may sue the owners of the hog farm for nuisance on the basis that the hog farmer's use of his/her land unreasonably interferes with the neighbors' use and enjoyment of their own land.[19]

So-called "right to farm" common law rules or statutes[20] provides very limited protection to farmers from nuisance suits. For example, the North Carolina right to farm statute prohibits civil actions for private or public nuisance against agricultural operations if: (1) the nuisance is based on changed conditions in the surrounding community; (2) the agricultural operation has been in operation for more than one year; (3) such operation was not a nuisance at the time the operation began; and (4) the nuisance does not result from negligent or improper operation of an agricultural or forestry operation.[21] If any of these conditions is not met, the neighbors can sue. Therefore, where the neighbors lived in the area before the agricultural operation began, the right to farm statute does not bar a nuisance action.[22] Further, even if the operation existed before the neighbors arrived, if the agricultural operation subsequently became a CAFO or changed from one product to another, the right to farm statute would not apply.[23] Given the courts’ narrow interpretation of the right to farm laws, this law does not prevent the neighbors from suing a recently established CAFO.

It is prudent to check for recent limiting state statutes. For example, the North Carolina pre-litigation mediation statute requires a litigant to start a mediation process before filing a nuisance action against a farmer.[24]

CAFOs are an environmental problem by themselves. The placement of CAFOs in people of color communities is an environmental justice problem -- a problem that has the same types of remedies and require the same level of high quality committed legal representation as with other areas of environmental law and civil rights law. Nuisance and other common law theories also give rise to punitive damages claims. This fact and the attorney’s fees provisions in the federal environmental and civil rights statutes allow attorneys to act as private attorneys general to protect communities. It is the hope of this author that more attorneys will take on these types of cases and do so without the intention of taking the money and running out on the client communities before helping them achieve the remedies they deserve.