Robert Kennedy Jr. Cries Foul

Robert Kennedy Jr. has been publicly promising to sue all of America’s “factory hog farms” out of business, and put 60 million U.S. hogs back outdoors. Having grown up next to a smelly, muddy, outdoor hog farm, I know this is a bad idea. Now, a federal judge has dismissed Kennedy’s lawsuit against America’s biggest hog contractor, Smithfield Foods.

Kennedy may argue that Smithfield got off on a technicality: The judge said Kennedy and his Waterkeeper Alliance failed to prove that the company’s actions had damaged their property. (Bobby may be surprised to learn that the Kennedy family doesn’t actually own the nation’s rivers.)

However, the judge took an unusual further step: she’s making Kennedy’s lawyers pay Smithfield’s legal costs. That usually means the judge thinks the lawsuit was frivolous. U.S. District Court Judge Elizabeth Kovachevich wrote in her opinion, “No reasonable attorney could reasonably believe that [the lawsuit] had any reasonable chance of success.”

Kennedy is asserting in his lawsuit that factory hog farms dump millions of tons of raw animal waste into the nations’ rivers. But that isn’t happening. The hog farmers have reality as a defense.

Kennedy and his group have also been losing “hog pollution” lawsuits in North Carolina courts, where most of the Smithfield hogs are raised. One of Kennedy’s attorneys alleged it would take $10 billion to restore the hog damage in just one of North Carolina’s rivers. But the Waterkeepers lawsuit was thrown out by a state court, and a companion suit on behalf of 17 riverbank landowners was also dismissed.

Why? The plaintiffs failed to prove any damage by the hog farms. Confinement hog farms may raise emotions, but they don’t raise pollution levels. The quarterly reports from North Carolina’s Department of Water Quality consistently show that 99 percent of the state’s hog farms have no discharges to surface waters at all.

North Carolina’s Black River, which drains many of Smithfield’s hog farms—and has the densest hog population in the United States—is rated an “outstanding resource water” by the state. The river has no higher nitrate content today, with 9 million hogs, than it did fifteen years ago with 2 million.

The total discharge from the hog farms is miniscule—especially when compared with the large amounts of nitrate spewed from the cities’ waste treatment facilities. The nutrient spikes found in North Carolina streams are not associated with hog farms but with its urban sewage treatment plants. Today’s city sewage plants take out only about half of the nitrate from human waste.

Farmers won another recent victory when the Iowa Supreme Court ruled that county governments could not impose tighter public health requirements than the state government sets. Some counties in Iowa, Colorado, and Missouri had used ultra-tight regulations written by county health departments to discourage confinement hog farms from being built.

In reality, however, a modern confinement hog facility is no health threat to people. I was recently invited to be an expert witness in a hog pollution lawsuit, and reviewed the “evidence” presented by the plaintiff neighbors. They alleged that hog farms caused every case of flu, fatigue, or depression in the county. But they essentially offered no evidence connecting the hog farms to health problems. Their courtroom strategy was to pass around the jury swatches of cloth that had been dipped in the hog farm’s waste lagoon.

The whole lawsuit was about odor.

Ironically, today’s hog farms are less smelly than outdoor hogs, and radically less offensive than the feedlot hog farms of 20 years ago. The best modern hog farms cannot be smelled even 50 yards away, downwind, on a hot day. The hog waste is injected into the fields so effectively that all you smell is earth.

What angered me about the Waterkeeper hog lawsuit is that even if a confinement hog farm occasionally leaked a bit, essentially it’s putting the hog waste to good use on growing crops instead of letting the waste get into the streams. The one certain thing is if the Waterkeepers sue 60 million confinement hogs back outdoors, all of our hog waste will wash into the streams with every rainstorm. Thus the Waterkeepers lawsuits sabotage their own clean-water mission!

This article appeared in the Knight-Ridder Tribune on July 23, 2002, and is reprinted with permission.