NORTH CAROLINA — Judges on the ninth circuit of appeals rejected a petition to increase oversight for two of North Carolina’s biggest industries: hog and poultry farming. Critics argue the decision increases the likelihood of runoff pollution in major storms.
READ MORE: Pender County resolution calls hog farm lawsuits ‘frivolous’ and sides with state legislators
ALSO: Local environmentalist joins factory-farm pollution lawsuit against EPA
Wilmington-based Cape Fear River Watch riverkeeper Kemp Burdette filed a brief last year in support of a lawsuit against the Environmental Protection Agency for failing to regulate the controlled animal feeding operations — commonly known as “CAFO” — industry under the Clean Water Act.
The Environmental Protection Agency cites agricultural runoff as the leading cause of water impairment to rivers and streams. 20 petitioners — including the North Carolina Environmental Justice Network — argue lenient EPA oversight has allowed almost 10,000 CAFO facilities to discharge millions of gallons of pollutant-laden waste into the country’s public waters for decades.
Food & Water Watch represented 30 groups in a 2017 petition to strengthen CAFO waste oversight. The EPA admitted CAFOs may be responsible for unlawful water pollution but rejected the petition last year. The ninth circuit of appeals upheld the EPA’s decision Wednesday.
The EPA argued more information is needed to determine the best means of reducing CAFO pollution. It will conduct a study on the efficacy of its regulations and convene a stakeholder committee including industry groups such as the National Pork Producers Council and American Farm Bureau Association, which backed the EPA as intervenors in the case.
A September Food & Water Watch report estimated North Carolina’s CAFO industry produces 36 billion pounds of animal waste annually, roughly 2.5 times the state’s human waste. At least 50 hog lagoons overflowed during Hurricane Florence; the State Laboratory of Public Health found almost 15% of private wells tested positive for E. Coli and fecal coliform after the storm, compared to 2% beforehand.
Food & Water attorney Emily Miller cited the EPA’s agricultural stormwater discharge exemption as a core focus of the suit. The statute allows CAFO facilities to avoid violations if waste discharge into waterways is caused by flooding.
“Not only does EPA’s lax rule explicitly exempt a large swath of factory farm discharges from regulation, but it also gives these polluting operations an easy out to explain away evidence of any discharges, allowing them to evade federal permitting requirements altogether,” Miller wrote in an email to Port City Daily. “Nowhere is that more apparent than in North Carolina, where factory farm water pollution is severe, yet only 14 of the State’s 1,022 Large CAFOs have Clean Water Act permits.”
The attorney emphasized the impact of the Clean Water Act’s agricultural exemption on North Carolina; state law allows CAFO facilities to spray waste on nearby fields up to 12 hours after a hurricane warning.
“These factory farms are spewing this waste out so their lagoons don’t overflow,” she said. “That is just standing waste on fields that are imminently going to be hit by a hurricane. So those will wash off and flood waters will be containing pathogens, heavy metals, antibiotics, and antibiotic-resistant materials from these fields.”
UNCW biologist and oceanographer Larry Cahoon — a board member of Cape Fear River Watch — views recent flooding in North Carolina from Hurricane Helene and Potential Tropical Cyclone #8 as a wake-up call for greater oversight of the state’s controlled animal feeding operation industry.
“The overall exemptions for ag — you can drive a bus through those holes in the rules,” he told Port City Daily.
Department of Environmental Quality deputy communications director Josh Kastrinsky told Port City Daily the agency had not been notified of any lagoon breaches in the tri-county region due to Potential Tropical Cyclone #8 or storms in recent months. He noted Hurricane Helene had caused some breaches in western North Carolina that were being investigated.
Pender County extension director Mark Seitz raised concerns in July that some of the county’s hog lagoons were getting close to overflowing due to heavy rains. Spokesperson Brandi Cobb told Port City Daily she hadn’t heard of any lagoon breaches in recent months but would reach out to Seitz and other officials to confirm; a response wasn’t received by press.
A 2022 Environmental Working Group analysis found Pender County had 11 controlled animal feeding operation facilities in floodplain areas, the third highest in the state. Pender County has 250,000 hogs in its CAFO industry, according to the U.S. Department of Agriculture’s most recent 2022 data.
In 2017, Sen. Brent Jackson (R-Pender), the owner of Jackson Farms and the chairman of the state’s Appropriations and Agriculture, Energy, and Environment, introduced a 2017 bill to limit the amount of damages property owners could claim in nuisance litigation against agricultural businesses. The lawmaker has received over $225,000 in campaign donations from CAFO industry groups.
20 Pender County residents filed a nuisance lawsuit against Smithfield Foods for spreading foul odors and toxic substances through its “lagoon and spray” waste disposal system at four hog facilities in 2014. A federal jury ruled against Smithfield and awarded the residents $473 million — capped at $94 million under North Carolina’s nuisance law — in damages in August 2018. The county’s commissioners passed a resolution in support of the industry that described nuisance suits as “frivolous” a month earlier.
The 2014 Farm Act exempted agriculture industry complaints from public records law. Six years later, the 2020 Farm Act — also introduced by Jackson — further restricted public records for swine farms.
“The public needs access to the kinds of records this bill seeks to hide, records that plaintiffs used in the past to win court victories holding both government and industry to account,” Duke University environmental law director Ryke Longest wrote in a 2020 WRAL op-ed. “The records that SB 315 would make confidential have been instrumental in holding this powerful industry accountable.”
Department of Environmental Quality public records show a number of Smithfield-contracted hog lagoons in Pender County were given violations in the years preceding the 2020 bill. For example, the agency found Trumpeter Creek Farms in Rocky Point exceeded maximum waste levels in 2019 and Smithfield contractor JK Barnhill Topping was fined $6,066 for discharging waste into the Big Branch inlet in 2017.
“It just makes it that much harder to get a grip on what’s really going on,” Cahoon told Port City Daily.
Cahoon said swine and poultry waste from the state’s top producers — Duplin, Sampson, and Bladen — flows downstream to the tri-county region, contributing to impairment of local water.
“That stuff is making its way down here,” Cahoon said. “We knew that would happen. You can’t keep saturating the landscape with animal waste before it moves.”
Tips or comments? Email journalist Peter Castagno at peter@localdailymedia.com.
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