Food & Agriculture Quarterly January 2019 | Page 11

FOOD & AGRICULTURE QUARTERLY | JANUARY 2019
Other factors that may come
into play
In the lawsuits against Smithfield
farms, the lawyers for the plaintiffs
(neighboring landowners) have
continuously asserted that
Smithfield has “means and ability”
to “reduce the nuisance from
existing facilities” by ending the
use of “lagoon and sprayfield”
systems at their farms. Plaintiffs
stress that not only is Smithfield
Foods, Inc. a large, wealthy,
multinational company, but that
they have also changed their
lagoon and sprayfield practices
outside of North Carolina. In
lagoon and sprayfield systems, all
waste is collected in an open-air
lagoon and then sprayed on fields
as fertilizer. The practice was first
banned for new construction
in North Carolina in 1997, and
in 2007, the state permanently
banned the practice for newly
constructed swine facilities.
Although many of the facilities in
question were opened before any
ban on the construction of lagoon
and sprayfield facilities, the
plaintiffs contend that changes
made in other states mean
Smithfield can afford to change in
North Carolina. The ban on new
lagoon and sprayfield systems in
North Carolina, and evidence that
Smithfield has used different practices to reduce the
smell from the farms in other states, likely helped the
juries in the cases that have been tried to date find
that the farms are a nuisance to their neighbors. The
above argument is something operators of livestock
facilities in Ohio should be aware of. Although Ohio
has not specifically banned lagoon and sprayfield
systems like North Carolina has, the ability to
change the system could still potentially be used
to argue nuisance. Ohio operators are supposed to
follow best management practices and the Natural
Resources Conservation Service’s Field Office
Technical guide when applying and storing manure,
which include ways to reduce odor from manure
and other applications, as well as reducing other
types of nutrient pollution. Following such guidelines
would likely help operators in any argument against
nuisance.
Ellen Essman, J.D. is a senior research associate at The
Ohio State University College of Food, Agricultural
and Environmental Sciences Farm Office. This article
was originally published on Ohio Agricultural Law Blog
and was reprinted with permission by the editor. The
Ohio Agricultural Law Blog is an outreach project of the
Agricultural & Resource Law Program at The Ohio State
University, a program supported by OSU Extension.
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