As targets of water pollution lawsuits, producers may disagree with Waterkeeper Alliance President Robert F. Kennedy Jr., but they must realize how the suits may impact the industry.



The industrialization of the pork production business has made it a rogue, outlaw industry led by criminals, says Robert F. Kennedy Jr.

Industrial pork farming is one of the worst polluters in America, he says. These large corporations have such exquisite political clout that they have been able to escape the application of environmental laws.

Kennedy and the Waterkeeper Alliance have organized a legal team, which includes 19 attorneys from 13 private law firms around the country. They intend to file state and federal environmental lawsuits against leading pork production companies.

The law firms have each contributed $50,000 to fund the legal campaign. They include attorneys involved with the tobacco industry lawsuits. One of the attorneys, Jan Schlictmann, was the inspiration for the motion picture A Civil Action.

The suits target large pork production systems, especially those that employ lagoon and spray field manure management technology. The lawsuits contend that over application of lagoon water on spray fields causes nutrients to run into streams and rivers.

The alliance also has enlisted the support of the Sierra Club, the National Farmers Union and the Animal Welfare Institute, plus numerous other environmental and citizen-action organizations.

The alliance's membership base from 63 individual water, river, sound and bay keeper programs also raises funds from individuals and foundations for the legal effort.

Here are the highlights of the lawsuits and intent-to-sue letters filed thus far into the Waterkeeper Alliance hog campaign:

  • A class-action federal lawsuit against Smithfield Foods based on the Federal Racketeer Influenced and Corrupt Organizations (RICO) Act, filed in federal court in Tampa, FL.

  • Two federal environmental lawsuits filed in North Carolina against Smithfield facilities in Jones and Bladen Counties, alleging violations of the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA).

  • Four notice of intent-to-sue letters against Smithfield facilities in North Carolina for violations of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) and RCRA.

  • One intent-to-sue letter filed in Kansas City against a west-central Missouri Murphy Farms facility for violations of the CWA, RCRA, CERCLA and the Clean Air Act.

  • A pair of state lawsuits filed in North Carolina, naming defendants as Joseph Luter III, Wendell Murphy Sr. and Wendell Murphy Jr. The plaintiffs include fishermen, marina owners and landowners in the Cape Fear River, Neuse River and New River basins in North Carolina. This suit was dismissed by a Wake County Superior Court judge. The judge's decision will be appealed.



The lawsuits sought to use the Public Trust Doctrine, which says that the state's rivers are public resources held in trust for the benefit of all North Carolinians. The suits also sought an injunction against Smithfield, punitive damages and remediation of the rivers.

Impetus for Lawsuits

The lawsuits begin with Smithfield Foods and its subsidiaries, Brown's of Carolina and Murphy Farms. This is not because Smithfield is the nation's largest pork producer and owns the majority of the hogs in the state, says Kevin Madonna, attorney for the alliance.

The suits against Smithfield originate with the alliance's river keeper on North Carolina's Neuse River, Rick Dove, Madonna says.

Dove, an ex-Marine and attorney, lived on the river and had a commercial fishing business before large hog farms were built on the eastern North Carolina coastal plain. He then became the Neuse River keeper, patrolling and monitoring the river.

Of all the river keeper programs we have around the country, Rick's river was the most affected by any type of pollution, Madonna says. When Hurricane Floyd came through and flooded all of the lagoons, it thrust the river into the national spotlight.

Dove has organized a monitoring program along the Neuse River, with daily airplane flights and aerial photographs of hog facilities, lagoons and spray fields to document pollution, Kennedy says.

Political Clout

The lawsuits are based on several points. The first, the contention that large hog producers have used their political influence to allow their production facilities to be classified as farms instead of factories.

They construct these facilities in rural states where they can easily dominate the political landscape with large amounts of political contributions, like they have done in North Carolina, he says.

Kennedy and the Waterkeeper Alliance contend the farms, which they call hog factories, are not using the hog manure as a crop-growing resource but are instead disposing of it thus making it a waste product.

The large pork production facilities should be forced to build sewage treatment facilities like those used by municipalities and industry in North Carolina, Kennedy says.

Environmental Agencies

Kennedy also contends that the states and their environmental enforcers have been duped into not enforcing the environmental laws on large hog producers, again based on the farm designation, instead of factory.

On the same token, they contend, the pork corporations are shirking their responsibilities to manage manure by using contract growers to finish hogs and take the manure.

The contract growers of North Carolina, Kennedy says, are being forced to break the laws and have been made co-conspirators in crime by the companies.

Basically, those guys (contract growers) have a gun to their heads, where the company is saying either you do it our way or we are going to put you out of business like we did every other independent hog farmer, he says.

The North Carolina General Assemblies are indentured servants to Smithfield, Kennedy says. They are protecting Smithfield by not passing laws that force the integrators to take responsibility for the hog waste that a pig produces.

Meanwhile, the federal Environmental Protection Agency (EPA), he says, doesn't have the funding or the personnel to enforce the laws on the hog industry.

The EPA and state environmental agencies are not named in any of the lawsuits.

Madonna explains that judges grant broad prosecutorial discretion to government agencies. Instead, the lawsuits use provisions allowing citizens to file lawsuits, which are written into each environmental law.

We are stepping into a vacuum. This is a failure of government. The government has failed because it is not protecting the citizen's estate; it is not protecting the people, and it is not protecting the interest of the people, Kennedy says.

Alternative Technologies

Smithfield's $50 million in contributions to research alternative manure management technologies at North Carolina State University isn't acceptable to Kennedy.

He says waiting to find and implement manure technologies is not unlike waiting to prosecute a bank robber until he finds a new job skill.

What's the difference between robbing a bank and destroying a river? Kennedy asks. They are both illegal. I don't think the environmental laws are different than any other law that governs human conduct, he continues.

On Family Farms

Kennedy defines a family farm as an independent farm that is producing hogs outside of the factory system, through animal husbandry, through sustainable farming methods, the way hogs were produced in this country before Wendell Murphy and Smithfield came along.

Kennedy did not pinpoint how many hogs he thinks a family farm should produce, suggesting only that the number should depend on the soil type and agronomic rates for spreading manure on that soil.

Family farms can use the same production tactics as factory farms, as long as the manure is applied at agronomic rates, Kennedy says.

The farmers who are breaking the law (and) the industrialists who are breaking the law ought to be put out of business, he says. The farmers who are complying with the law, I have no problem with.

The size of the hog farms isn't really the issue, Madonna says.

It's not about size; it's about breaking the law. If they (large hog producers) can operate at the magnitude they are operating now and not break the law, then more power to them.

Racketeering Claim

Smithfield's profitability comes from illegal activity, not from creating production efficiencies or economies of scale, Kennedy contends. Because they don't have to build sewage treatment facilities, pork companies in this case Smithfield Foods profit from the illegal activity of environmental pollution.

That's where the federal RICO case comes into play. The lawsuit contends that Smithfield profited repeatedly from illegal activity (dumping manure and nutrients into the environment) and then reinvested that money into the pork business, which constitutes the illegal activity of money laundering, Kennedy says.

Racketeering is defined as chronic, repeated violation, more than two violations, of any of a number of listed statutes. Among those statutes is the money-laundering statute, Kennedy explains. If you violate any number of statutes and use the proceeds to reinvest in your business, legitimate or illegitimate, that is money laundering.

Inseparable Issues

Kennedy says the environmental issues and social issues of agrculture's industrialization are inseparable.

We don't protect the environment for the sake of the fishes and the birds, we protect it for our sake, for the sake of communities, because we know it enriches our community, he said.

On one hand, Kennedy espouses capitalism. On the other, he contends large pork corporations are not contributing, through the free market system, to their communities.

There is no stronger advocate of the free market economy than myself, he says. I believe that the free market is the most democratic and most efficient way of allocating resources of our land. But in a free market, you can't make money without making the community richer and making other people richer. What polluters, like Smithfield, do they make themselves rich by making everyone else poor.

Damages

The alliance has not estimated the total amount of punitive damages that could be collected from the pork industry.

The damages that could be collected from Smithfield Foods for the Neuse River could be more than $10 billion, Madonna says.

We haven't put any figures into the complaints, he says. We just want the rivers fixed, whether it costs $10 or $10 billion. We want Smithfield to pay for the destruction it caused.




Smithfield, NPPC Fire Back on Lawsuits

Both Smithfield Foods Inc. and the National Pork Producers Council (NPPC) have issued statements about the spite of lawsuits filed by the Waterkeeper Alliance.

We recognize that in America, anybody can sue anybody as they wish. But these lawsuits represent a gross perversion of our legal system. Hog production is one of the most heavily regulated segments of American agriculture, says Richard J.M. Poulson in a statement for Smithfield Foods. (Poulson is vice president and senior advisor to Joseph Luter III, the president and CEO of Smithfield Foods.)

Every one of our hog farms in North Carolina and other states uses state-of-the-art waste disposal technologies. Every farm has a legal permit from an appropriate government agency and is subject to a strict zero-tolerance standard for environmental discharge, a standard not applied to municipalities and many other industries, Poulson adds.

NPPC's statement included the following:

The legal assault launched by environmental rights activists with the financial backing of well-heeled plaintiff's lawyers is an attack on American agriculture and an abuse of our judicial system.

Pork producers operate under strict federal and state pollution laws and are working continuously to ensure that hogs are raised in an environmentally sustainable manner.




Alliance Began on Hudson River

The Waterkeeper Alliance is an umbrella organization for 63 keeper programs in North, Central and South America. The individual environmental programs include river, sound and bay keepers mostly along the East and West coasts of the U.S.

The organization started in 1966 when commercial and recreational fishermen in New York organized to clean up the Hudson River.

The alliance used the 1888 Rivers and Harbors Act, which allowed it to collect bounty money on polluting industries and municipalities along the river. That money funded the hiring of the first full-time river keeper in 1983 and the filing of lawsuits against the municipal and industrial polluters.

By 1998, the group had filed more than 150 successful lawsuits, according to its Web site ( www.keeper.org ).

The Hudson River was a national joke in 1966; it was an open sewer, an industrial and human sewer, says Robert F. Kennedy Jr., president of the Waterkeeper Alliance. Today, it is the richest water body in the north Atlantic. The miraculous resurrection of the Hudson has inspired the creation of keepers on waterways across North America.

More keeper groups were added, starting in 1983. Each of the keeper programs has a citizen-based membership, which pays the keeper's salary and pays for a boat, which he or she uses to patrol that body of water.

Name Change

In 1992 the keepers founded the National Alliance of River, Sound and Bay Keepers. In 1999, it was renamed the Waterkeeper Alliance. The alliance's main office is located in White Plains, NY, on the campus of the Pace Law School.