Looking Back: The Smithfield Lawsuits

It was three years ago this month when the nuisance lawsuits against Smithfield and Murphy-Brown were settled. It came on the same day that an appeals court upheld the questionable rulings of a biased judge and the exorbitant awards of a Wake County jury located far away from North Carolina hog farms.

A lot has changed since then, and a lot has remained the same. Here are some of the highlights:

What’s Changed

• The NC General Assembly has passed legislation that preserves and protects the Right to Farm. This includes updates to the Farm Act that clarify who can sue farms for nuisance (neighbors who live within a half-mile of the farm); when they can sue (within one year of any substantial changes to farm operations); and how much they can recover (no more than the fair market value of their property). The legislation also states that punitive damages cannot be awarded if a farm has not violated their permit within the past three years. Challenges to these laws were rejected by the NC Supreme Court.

• A trial lawyer at the heart of the Smithfield litigation is currently running for the Republican nomination for Governor of North Carolina. Bill Graham is a partner at Wallace & Graham, the Salisbury law firm that spearheaded the Smithfield lawsuits and originally filed lawsuits against individual family farmers in North Carolina. “This is not just a case. This is a cause,” Graham said of the lawsuits, which sought no changes to our farms — only money.

• An increasing number of North Carolina hog farms are now covering lagoons to capture methane emissions and generate renewable natural gas. The lagoon covers reduce greenhouse gas emissions, reduce odors, and minimize the potential for flooding. Predictably, activist groups who frequently complain about odors and flooding are staunchly opposed to these biogas projects.  

 What Hasn’t Changed

• Attacks against the pork industry haven’t stopped. The Southern Environmental Law Center (SELC) and the Duplin County chapter of the N.C. NAACP filed a Title VI complaint with the U.S. Environmental Protection Agency in 2021, alleging that DEQ is violating the civil rights of minorities in Duplin and Sampson counties by issuing biogas permits on hog farms. (Activist groups filed a similar complaint in 2014 regarding the issuance of  hog farm permits. That complaint was settled in 2018 with no finding of discrimination.)

• The Attacks Continue, Part II: Activist groups continue to spread false and misleading information about NC hog farms, including studies designed to raise health concerns. One example — a “study” by a Duke University professor that alleges residents who live near NC hog farms have elevated risks of disease and death. Despite the lack of  any evidence that ties health claims to hog farms — even the study’s authors acknowledge that there’s no causation or correlation — the media continues to reference flawed studies like this.

• The Attacks Continue, Part III: NC hog farms were at the center of another lawsuit against Smithfield Foods. This suit alleged that animal waste and associated odors and dust from a Duplin County farm traveled beyond the property line and were “trespassing” on the neighbors’ property. The creative attempt to get around the restrictions on nuisance lawsuits was dismissed in September 2023.

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 We know that those who are opposed to animal agriculture will continue to attack our hog farms. But, rest assured, one thing that won’t change is that NC Farm Families will stand up and speak out for our farm families. We’ll continue to sound the alarm about the legal and political threats facing our industry and work to educate residents about the positive steps being taken on our farms.

Two sides to a story: The farmer’s side

I’m a farmer. And I raise hogs. I read Ned Barnett’s editorial about the ‘nuisance’ trials in Raleigh, and I’d like to offer a farmer’s perspective.

Mr. Barnett was critical of two groups of people: Hog farmers, along with Smithfield Foods, and lawmakers. He wrote how our farms degrade eastern North Carolina and how we “treat swaths of eastern North Carolina as cesspools.” And he wrote that a rally held to support Joey Carter – whose farm is being closed down after the outcome of the second nuisance trail – was the work of “Republican lawmakers” who voters ‘should toss out’ of office.

Mr. Barnett didn’t have a kind word to say about either farmers or lawmakers– he views nuisance lawsuits that put farmers out of business as a virtue and views lawmakers who disagree as wrong.

But are farmers the villains he describes? Let’s step back and examine a couple facts. Four of Joey Carter’s neighbors, who live closer to his farm than the two plaintiffs in the second trial, testified Carter’s farm is not a nuisance to them. So did the jury awarding the two plaintiffs $25 million make sense? Or did justice run amuck in a Raleigh courtroom? Stop to remember how these lawsuits started: A group of lawyers from out-of-state came to North Carolina and went door-to-door signing up clients so they could sue farmers like Joey Carter. The proposition they made to their potential clients was simple: You join our lawsuits, we’ll pay the bills, and if we win you’ll get part of the money.

Ned Barnett never mentioned that fact in his editorial. And worse, the same fact was ignored during the trial. (The judge decided jurors should not be told how these lawsuits began.)The original out-of-state lawyers are now gone, replaced by another group of lawyers from Texas, and you have to give those Texas lawyers credit: They’re lethal in a courtroom. And their lawsuits have also been lethal to farmers. Both of the farms they sued over are being shut down. Which is the reason lawmakers decided it was time to strengthen legislation to protect farmers from predatory lawyers, whose lawsuits threaten to cripple a pillar of eastern North Carolina’s economy.

As I said, I raise hogs. However, even when I disagree with Mr. Barnett, I respect his right to have his say. But, at the same time, people need to hear both sides. I’m also grateful to Lt. Governor Dan Forest, Agriculture Commissioner Steve Troxler, and to Republican – and Democratic – lawmakers for taking a stand for farmers like me. 

-Chad Herring, Executive Director of NC Farm Families

Facts Contradict Elsie Herring's Story

She’s an internet star for Earth Justice, Environmental Justice, Environmental Working Group, the Waterkeeper’s and operation R.E.A.C.H. She’s told her story on websites for Mother Jones, Policy Watch, Indy Week, Democracy Now, Raw Story, and in the film Right to Harm. She’s the voice of ‘environmental justice’ groups. The unofficial spokeswoman for lawyers suing hog farmers. She’s Mrs. Elsie Herring.

Elsie Herring’s Story

The story she tells goes like this: The hog farmer next door to her home sprays his field “three or four days on a slow week” – and sometimes “daily.” And occasionally “at night.” The odor is so bad she can’t go outside. She can’t sit on her porch. She’s trapped, a captive in her own home.It’s the dramatic tale of ‘the captive lady and a cruel farmer’ and Elsie Herring’s told it over and over for years.

The Truth About Hog Farmers

But there’s a problem.Every time the hog farmer sprays his field he has – by law – to keep a record for state inspectors to review. Here’s a photo of the farmer’s ledger:

Did he occasionally spray at night? No.Did he sometimes spray daily? No. Did he spray 3 or 4 times a week? No.In fact, over the last 6 months the farmer only sprayed on 2 days and, then, he only sprayed an average of 2 hours and 8 minutes each day.Recently, Mrs. Herring was back on the Internet.  She’s told her story many times. A lot of people have heard it. But look at the facts. Look at the farmer’s ledger. Look at this video:

Go down to her home and look at the grove of trees between her house and the farmer’s field. The facts contradict her story. Why does she continue to tell it? We don’t know. But we do know the facts tell a different story.

Update: For the past 3 years, the field closest to Ms. Herring’s house has not been used. This increases the spray field distance to 900 feet—not 8 feet.