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by Daniel J. Whittle
The General Assembly recently renewed the moratorium on
expansion of the state’s hog population until 2003. The most
important decisions on how to control pollution from the state’s
existing 10 million hogs, however, are now pending before the
state Supreme Court, Department of Environment and Natural
Resources (DENR), and the Attorney General’s Office. The
combined outcomes of these decisions may represent giant steps
forward or dramatic steps backward in protecting air and
water resources, public health and quality of life for thousands of
citizens.
Joint state-local regulation of pollution is critical in areas where a
one-size-fits-all approach to environmental standards does not
adequately address local conditions. This is especially important
in the regulation of hog farms because impacts from hog waste
pollution vary dramatically from county to county, depending
upon topography, soil conditions, density of land uses, wind
patterns and other factors. Unfortunately, joint regulation was
dealt a blow last spring when the state Court of Appeals struck
down local Chatham County health-based rules governing large
hog farms that had been in place since 1998.
Admirably, Chatham took its case to the state Supreme Court,
which is scheduled to hear arguments Wednesday on whether
local governments may act to protect the health and welfare of
their own citizens by imposing limits on the location and
management of industrial-sized hog farms.
Though state law places some restrictions on county zoning of
farming, it is undisputed that county commissioners and local
health boards have the authority to adopt general ordinances and
health boards have the authority to adopt general ordinances and
health rules to protect local environments and the public’s health
and welfare. In fact, state law expressly authorizes localities to
pass environmental and health-based regulations more stringent
than those developed by state agencies.
City and county governments have routinely used their authority
to protect groundwater supplies, to impose high standards for
the processing and handling of shellfish and to limit development
in sensitive coastal areas, among other things. In fact, nine
counties had already imposed strict measures on factory farms
well before legislators confronted the growing pollution crisis by
enacting minimal, statewide permit-granting, siting and waste
management requirements in 1996 and a hog farm moratorium in
1997.
Halifax County led the pack in 1992 when it passed an
ordinance designed to prevent “adverse human health and
quality of life consequences of exposure to insects, vermin,
airborne ammonia, and other conditions associated with
intensive livestock operations."
The Supreme Court is not expected to announce its decision on
the Chatham County case until early next year. In the meantime,
DENR is in the process of making an equally important decision
on who should be responsible for damages caused by hog
pollution.
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Currently, only contract farmers who raise hogs are liable for
environmental violations, while the major companies that actually
own the animals get off scot-free. That will change if DENR
decides to hold big companies, such as Virginia-based
Smithfield Foods, financially liable for the waste generated by
their own animals. DENR is conducting public hearings this
month and will make a final decision late this year.
Meanwhile, the Attorney General’s Office continues to serve as
home base for initiatives agreed to by Smithfield Foods and
Premium Standard Farms that, if fully implemented, may
significantly clean up pollution on company-owned factory farms
by replacing open-air lagoons with environmentally superior
alternative technologies by 2005. The attorney general must be
vigilant to ensure that these promises stay on track and produce
alternatives that can be used statewide.
All told, the Supreme Court decision, the DENR ruling and the
attorney general's vigilance in enforcing the terms of the
Smithfield Agreement are critical to reducing the serious
pollution and health consequences of industrial-sized hog farms.
Should local governments have the authority to protect public
health by adopting stricter standards than the state? Yes.
Should companies that own hogs be responsible for the waste
that the animals produce? Certainly.
Can alternative technologies for waste management help control
pollution and ensure the pork industry remains health?
Absolutely.
North Carolina is on the road to a cleaner environment, but the
trip is long.
Daniel J. Whittle is senior attorney with the North Carolina office
of the Environmental Defense organization.
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