Something’s in the Water: Litigation and Community Action Against Polluting Industrial Farms

This piece is part of our Stu­dent Blog Series, fea­tur­ing posts on cli­mate, clean ener­gy, and envi­ron­men­tal issues from the State Impact Center’s legal interns and oth­er stu­dents work­ing with the Center.

Key prin­ci­ples with­in the Envi­ron­men­tal Jus­tice (EJ) move­ment include the right to live in a healthy envi­ron­ment free of envi­ron­men­tal tox­ins and the right to par­tic­i­pate equal­ly in envi­ron­men­tal deci­sion-mak­ing process­es. The begin­nings of the EJ move­ment can be traced to War­ren Coun­ty, North Car­oli­na, when res­i­dents resist­ed the sit­ing of a tox­ic poly­chlo­ri­nat­ed biphenyl (PCB) waste dump in their com­mu­ni­ty. More than four decades lat­er, EJ com­mu­ni­ties in North Car­oli­na and through­out the coun­try are still deal­ing with the adverse con­se­quences of liv­ing in envi­ron­ments sat­u­rat­ed with haz­ardous pol­lu­tants, a con­se­quence of being per­pet­u­al­ly locked out of envi­ron­men­tal decision-making.

Con­cen­trat­ed Ani­mal Feed­ing Oper­a­tions (CAFOs) are dis­pro­por­tion­ate­ly placed in EJ com­mu­ni­ties that are already over­bur­dened by oth­er sources of pol­lu­tion and waste in North Car­oli­na. The Depart­ment of Agri­cul­ture defines CAFOs as indus­tri­al-sized live­stock oper­a­tions con­sist­ing of more than 1000 ani­mal units … con­fined on site for more than 45 days” a year. The ani­mal waste pro­duced by CAFOs is harm­ful to human health, often har­bor­ing pathogens like E. Coli, cryp­tosporid­i­um, and sal­mo­nel­la. Stud­ies indi­cate that liv­ing near indus­tri­al-scale hog oper­a­tions may con­tribute to high­er rates of kid­ney dis­ease and ane­mia, exac­er­bate asth­ma symp­toms, and pos­si­bly lead to pre­ma­ture death.

Con­t­a­m­i­nants found in ani­mal waste like nitro­gen and phos­pho­rus may con­t­a­m­i­nate rivers, ground­wa­ter, and oth­er water sources from spray fields where the waste is over-applied as fer­til­iz­er by farm­ers on crops. This is a prac­tice that cor­rodes the ecosys­tems around it. The pro­lif­er­a­tion of tox­ic algal blooms that kill fish and oth­er marine life across the coun­try has been attrib­uted to the nitro­gen and phos­pho­rus found in ani­mal waste­water. Nutri­ent con­t­a­m­i­na­tion occurs because of unlined lagoons and exces­sive fer­til­iz­er use that may eas­i­ly seep into water­ways dur­ing heavy rains.

EJ advo­cates in North Car­oli­na have had some suc­cess fight­ing CAFO pol­lu­tion, like when Duplin Coun­ty res­i­dents won a major nui­sance law­suit in 2018 for the noise and odor pol­lu­tion com­ing from lagoon waste and spray fields attrib­ut­able to Smith­field Foods Inc., oper­a­tor of some of the largest CAFOs in the state. How­ev­er, some advo­cates are con­cerned that the Farm Act, sub­se­quent­ly enact­ed that same year in North Car­oli­na, will elim­i­nate hope of suc­cess for future, sim­i­lar lit­i­ga­tion by tight­en­ing con­di­tions under which a plain­tiff can suc­ceed in a nui­sance action against an agri­cul­tur­al operation.

Sher­ri White-Williamson, direc­tor and founder of the Envi­ron­men­tal Jus­tice Com­mu­ni­ty Action Net­work (EJCAN), and Samp­son Coun­ty res­i­dent, has begun orga­niz­ing and edu­cat­ing com­mu­ni­ties on hog farm­ing prac­tices and oth­er envi­ron­men­tal con­cerns. EJCAN con­ducts water test­ing to mon­i­tor water qual­i­ty and con­venes reg­u­lar meet­ings with the pub­lic, among oth­er actions which allow res­i­dents to under­stand the issues plagu­ing their com­mu­ni­ty and know more about the sources of pol­lu­tion that the com­mu­ni­ty encounters.

Out­side North Car­oli­na, state attor­neys gen­er­al (AGs) have tak­en steps to address some of the prob­lems caused by CAFOs in their states. In April 2022, Wis­con­sin AG Josh Kaul secured a $225,000 penal­ty from a CAFO oper­a­tor in Kewaunee Coun­ty for endan­ger­ing pub­lic health by vio­lat­ing pro­vi­sions of a waste­water dis­charge per­mit con­cern­ing man­age­ment of land-spread manure. AG Kaul also won $55,000 from Ver­has­selt Farms for the dis­charge of pol­lu­tion into state waters in vio­la­tion of the operation’s water dis­charge per­mit, state laws, and oth­er infrac­tions. The judg­ment also includ­ed an order to com­plete upgrades to two feed stor­age areas at the Out­agamie Coun­ty farm.”

In March 2022, Michi­gan AG Dana Nes­sel filed a law­suit against Hol­loo Farms on behalf of the Depart­ment of Envi­ron­ment, Great Lakes, and Ener­gy (EGLE), alleg­ing its CAFO vio­lat­ed per­mit require­ments as well as the Nat­ur­al Resources and Envi­ron­men­tal Pro­tec­tion Act (NREPA). AG Nes­sel also secured a $120,000 penal­ty, addi­tion­al over­sight, and increased per­mit­ting con­di­tions in a Con­sent Judg­ment with Slater Farms for its operation’s pol­lu­tion of the White Riv­er water­shed with E. coli, nitro­gen, and phos­pho­rus, threat­en­ing the well-being of the Great Lakes. Though the mon­e­tary penal­ty may be par­tial­ly waived with Slater Farms’ com­pli­ance with its oper­at­ing per­mit, this is undoubt­ed­ly a step in the right direc­tion towards dis­in­cen­tiviz­ing CAFOs from pol­lut­ing their sur­round­ing environment. 

Pre­vent­ing CAFOs from harm­ing peo­ple and the envi­ron­ment is an area where states have a lot of poten­tial to change the land­scape pos­i­tive­ly. States can enact reg­u­la­tions to keep the CAFO indus­try from despoil­ing the land, as well as leg­is­la­tion which empow­ers com­mu­ni­ty auton­o­my over their envi­ron­ments. States can work with affect­ed com­mu­ni­ties by sup­port­ing and part­ner­ing with estab­lished com­mu­ni­ty orga­ni­za­tions like EJCAN, or they may try to push for bet­ter con­di­tions by lit­i­gat­ing against CAFOs that vio­late the law. Mean­ing­ful reg­u­la­tion and over­sight of this indus­try can ensure that every­one, espe­cial­ly EJ com­mu­ni­ties that are most vul­ner­a­ble, are not fur­ther harmed by it.