Abstract
How we treat nonhuman animals (“animals”) not only reflects the morals and values of society, but our treatment also has enormous effects on society. Our actions toward farmed animals, in particular, cause immense suffering and devastating impact. Building upon a concurring opinion drafted by Judge J. Harvie Wilkinson III of the Fourth Circuit, this article discusses the myriad environmental, animal welfare, and societal harms of factory farming. Addressing the underlying animal-rearing practices that breed these harms will abate many of them. Such practices include caging animals in spaces so small they cannot turn around, warehousing animals in structures with no outdoor access, collecting tons of gallons of animal waste and disposing of it in the surrounding environment, and slaughtering animals at such high rates and line speeds that food and worker safety are put on the line. These actions disregard animal welfare and have enormously harmful external environmental and societal consequences. Black, Indigenous, People of Color (BIPOC) and people experiencing poverty are affected the most by each of the associated harms. These intersectional injuries demonstrate that farmed animal welfare is an integral component of environmental justice.
INTRODUCTION
“I
This article proceeds as follows. It begins with an overview of the groundbreaking nuisance lawsuit brought by disenfranchised neighbors against one of the world's largest meat producers. It then examines how the intensive animal confinement practices common within the industry harms animals, imperils public health, and increases zoonotic risk, which prompts practices that again perpetuate harms to animals, the environment, and the community. Next, how this industrialized system exploits workers, undermines worker safety, and pollutes the environment is discussed, including how each of these harms, worsened by extreme animal confinement practices, excessively injure people of color and low-income communities. Many legislative bodies are only furthering this systemic injustice by passing laws that protect the powerful and burden the vulnerable. Those actions are mentioned followed by a discussion of how an unlikely player—the insurance industry—can positively effect change in this space for people, the environment, and farmed animals.
MCKIVER V. MURPHY-BROWN
Many plaintiffs in this suit have tended their hearths for generations—one family for almost 100 years. They are exactly whom the venerable tort of nuisance ought to protect. Murphy-Brown's interference with their quiet enjoyment of their properties was unreasonable. It was willful, and it was wanton.—J. Wilkinson
The McKiver matter involved Kinlaw Farms, a nearly 15,000-pig Concentrated Animal Feeding Operation (CAFO) in North Carolina. Kinlaw was run by a contract farmer of Murphy-Brown, LLC, d/b/a Smithfield Hog Production Division, a subsidiary of Smithfield Foods, LLC, the world's largest pig processor and pork producer. Smithfield Foods, in turn, is a wholly owned subsidiary of WH Group, a Chinese company. The over 150,000 pounds of waste the pigs at this CAFO generated every day was stored in open-air “lagoons” (which Judge Wilkinson describes as “essentially three uncovered, 8 million-gallon cesspools”). These cesspools were emptied by spraying the waste material into the air over the surrounding land. 2
This lagoon-and-sprayfield system causes many problems for surrounding neighbors, from wretched stench to fly infestations to water and air contamination. Consequently, Kinlaw's neighbors sued the company for nuisance—a tort action used to address injuries caused by unreasonable interference with the use and enjoyment of one's property. This lawsuit was just one in a series of nuisance suits brought by more than 500 neighbors of various Smithfield-affiliated operations. Smithfield's subsidiary lost several of these cases at trial to the tune of millions in compensatory and punitive damages. 3 It appealed the McKiver verdict, resulting in the remarkable concurrence by Judge Wilkinson, in which he recognizes that “treating animals better will benefit humans” and that our collective welfare is “integrally connected.”
INTENSIVE CONFINEMENT HARMS ANIMALS
The warp in the human-hog relationship, and the root of the nuisance in this suit, lay in the deplorable conditions of confinement prevailing at Kinlaw, conditions that there is no reason to suppose were unique to that facility.—J. Wilkinson
The industrialized CAFO system used to produce billions of animals each year to feed America's meat appetite causes harm to animals on a massive scale. The intensive confinement practices and overcrowded conditions that are commonplace in CAFOs frustrate, distress, and cause suffering to animals. 4 Many animals even die due to complications from their congested environment. At Kinlaw, “the mortality rate was around seven percent,” and the piled-up carcasses in dumpsters were an eyesore to neighbors. 5 The natural mortality rate is much lower in animals raised outside of extreme confinement. 6
Extensive scientific evidence shows that intensively confined animals suffer because they cannot exercise, fully extend their limbs, or engage in many important natural behaviors. 7 A federal advisory board noted, and commonsense tells us, that good animal welfare requires that animals be able to perform species-specific behaviors. 8 Naturally, since intensive confinement interferes with these behaviors, it is detrimental to the animals' well-being. The harms to animals in this industrialized system are vast and overwhelming. Still, farmed animals are not the only ones that suffer from the consequences of the industry's inhumane practices. Wildlife and even companion animals are harmed by the industry's contribution to climate change, habitat loss, rising seas, wildfires, and the spread of parasites and pathogens. 9
PUBLIC HEALTH IMPLICATIONS OF EXTREME CONFINEMENT PRACTICES
This triangular rotation among animals, workers, and homeowners is no fluke. It repeats again and again. Consider another similarly structured example: the problem of viral disease. It is well-established that close confinement leads to the “increased risk of the spread of disease” between hogs.—J. Wilkinson
Animals concentrated in large numbers and tight environments at CAFOs create a breeding ground for disease. Packing animals into cages or side by side in crates provides limited movement and no opportunity for animals to move away from one another. This overcrowding is a serious issue because maintaining distance works for animals as it does for humans in slowing the spread of infectious diseases. 10 Keeping animals in crates or cages intensifies this problem because they are harder to disinfect. 11 Cleaning every joint or nook of cages is not always possible, so, if the infectious agents are persistent outside the host, the infection can begin again when new animals are put into those cages. 12
Even without cages, high stocking densities amplify pandemic risk. 13 Stocking density refers to the number of animals kept on a given unit of area. For example, it is common industry practice to provide broiler chickens (those raised for their meat) less than one square foot of space per bird, which gives each bird about the size of a typical sheet of paper. 14 Like cage systems, this limited space provides little to no opportunity for animals to spread out and keep their distance.
As Judge Wilkinson noted, “it is well established that close confinement of animals leads to the increased risk of disease” transmission. 15 If one animal becomes infected, her close proximity to other animals can intensify the virus's rapid spread from one animal to another. And with each transfer, the virus has the potential to mutate into something novel and even more deadly. Thus, our factory farm system, which depends on large numbers and tight confinement, plays a Russian roulette game with viruses. 16
Those working in or living near factory farms are at the highest risk of exposure to potential zoonotic diseases (those transmitted from animal to human), but as experience with the COVID-19 pandemic has shown, viruses that are highly virulent have the potential to spread rapidly and create a global problem. 17 Most new diseases affecting humans are of animal origin. 18 These zoonotic diseases are usually directly related to the human consumption of animal-sourced food—be it from wildlife (as suspected in the case of COVID-19) or farmed animals (as in many avian and swine flu outbreaks), both of which facilitates direct contact with animals. 19
INTENSIVE CONFINEMENT INCREASES ZOONOTIC RISK
Pathogens like H1-N1 “swine flu,” which incubate and mutate in pigs, can sometimes jump to human hosts. The swine flu outbreak of 2009, which led to almost 275,000 hospitalizations and 12,500 deaths in the United States, put the country on notice of that fact.—J. Wilkinson
According to the United Nations, the worldwide growth in industrialized farming of animals means that there have never before been as many opportunities for pathogens to pass through animals and the environment to affect humans. 20 The risk of viral disease from intensively confined farmed animals is an existential threat.
For instance, avian influenza (bird flu) is currently spreading throughout parts of Europe and Asia and has the potential to cause severe harm. 21 Bird flu is a viral respiratory disease that infects all avian species and can also infect pigs and humans—so it has zoonotic potential. It is categorized based on its virulence to chickens as either low- (LPAI) or high-pathogenic avian influenza (HPAI). It is a common disease in birds, but it frequently mutates, making it very dangerous. With each mutation, the virus may become more severe. Additionally, virus mutations make diseases harder to target by immune systems and with vaccines or therapeutics. HPAI is a potentially fatal virus to humans and has a mortality rate much higher than many other infectious diseases, including COVID-19. When people have become infected with certain strains of bird flu, the mortality rate is about 60%. 22
Given the nature of the threat, activities known to increase public risk, such as confinement practices at CAFOs, ought to be strictly regulated. However, no federal laws regulate the treatment of animals on the farm (as distinct from during transport or at slaughter facilities). 23 Still, the federal government could take action to incentivize safer and more humane practices. As it stands, the government's HPAI control plan does nothing to disincentivize dangerous, high-density animal operations. 24
In fact, when an outbreak occurs and the U.S. Department of Agriculture (USDA) assists in killing the farmed animals to control the spread, the federal government pays producers to restock their cages or refill their warehouses at the same density, even in large facilities that use dangerous and extreme confinement practices. 25 This approach makes about as much sense as being encouraged to build a hotel on a cliff above a very populated area in a hurricane belt, and each time it is damaged or collapses, the government gives the homeowner money to rebuild in the same spot.
USDA could instead condition indemnification on placing animals in cage-free low-density environments. 26 Not only would this improve conditions for the millions of animals currently raised in extreme confinement, but raising animals in a safer more diffuse environment would also slow the mutation and spread of disease. 27 Disincentivizing extreme confinement practices through indemnification procedures is a viable reasonable alternative that would diminish much of the industry's environmental impact, reduce animal suffering, and help prevent future outbreaks. As the UN recognizes, outbreak prevention is cheaper, safer, and more humane than waiting to respond to an outbreak. 28 USDA recently settled a lawsuit related to these practices by agreeing to thoroughly evaluate the environmental impacts of killing and burying or burning millions of animals and the discriminatory effect of those impacts. 29
INHUMANE MASS-KILLING METHODS
Dying hogs imperil human well-being in other ways. … [T]he problem lies in Kinlaw's method of storing and disposing of the numerous dead hogs. Kinlaw piled carcasses into uncovered storage containers that plaintiffs call “dead boxes.”—J. Wilkinson
For now, however, USDA's strategy does not focus on mitigation efforts but instead aims to contain viruses as they emerge. When an infected flock or herd is detected, USDA's reactionary plan requires animals to be killed en masse (or, as the government euphemistically calls it, “depopulated”). 30 The approved methods of killing represent additional concerns for animal welfare, the environment, and public health.
Ventilation shutdown (VSD), for instance, involves shutting down a facility's entire ventilation system—the huge fans on the warehouse-like structures used to regulate temperature and filter debris. Turning them off causes a buildup of carbon dioxide and heat that suffocates the birds or pigs in the facility—essentially cooking conscious animals to death. Another method involves applying water-based foam over birds, which slowly expands to suffocate the birds while conscious, causing an agonizing slow death. 31 There are other methods of killing, such as poisoning, decapitation, and captive bolt gun, but since these require individual handling, they are not seen as practical for use on large flocks or herds in an emergency.
Fast-expanding nitrogen-filled foam is a more humane method that could be deployed quickly in an emergency. 32 Unlike water-based foam, the gases in this foam render birds unconscious before they suffocate. If USDA stopped subsidizing dangerous practices, the risk of infection would be lower and thus reduce the need for such destructive measures. But, if extreme measures such as depopulation are in consideration, we should insist upon a standard of humaneness.
These depopulation methods were contemplated for use during emergencies (i.e., when there is a real and serious threat to public health and safety). But the industry has deployed them to kill animals for non-emergencies. For instance, backups at slaughterhouses due to COVID outbreaks among workers prompted farmers to kill healthy animals using VSD. 33
WORKER EXPLOITATION AND SAFETY HAZARDS
Viewing the sheds' diminished air quality solely as a “hog problem” misses the very real hazard it represented for workers.—J. Wilkinson
While these brutal killing methods manifest first in animal suffering, they also impose harm upon farmworkers who carry them out. The act of brutally killing animals takes a major toll on farmworkers' mental health. 34 And it was the physical health of slaughterhouse workers that led to the unnecessary and cruel use of emergency depopulation methods on healthy animals. 35 Coronavirus outbreaks at meatpacking plants nationwide have resulted in the deaths of more than 260 employees. 36
Big animal agriculture's systemic worker safety issues extend beyond the recent COVID-19 outbreaks. Slaughterhouse workers have historically had one of the most dangerous jobs with high rates of injury, dismemberment, and death—and the current crisis has exacerbated the dangers of these jobs. 37 Yet, worker safety is being jeopardized even more by increased line speeds at slaughterhouses. The slaughter line is the conveyor belt-like system on which animals are hung to move through the slaughter process. Workers manually shackle chickens upside down by their legs to these lines. At 140 birds per minute, the line speed at poultry plants already caused injuries and inhumane handling problems. But at many plants, the speed was increased to 175 birds per minute. 38
For pigs, the increase went from 1106 pigs per hour to being limitless at pork processing plants, even though faster lines result in increased food safety hazards, humane handling violations, and worker safety issues. 39 Workers struggling to keep up with fast-moving lines are at heightened risk of work-related injuries such as wrist and finger sprains or breaks and carpal tunnel. In turn, keeping up with humane handling standards becomes increasingly difficult. Also, increasing line speeds means more workers on the lines or workers moving more rapidly, which reduces their ability to distance themselves, putting them at greater risk of becoming infected, and making slaughterhouses hot spots for COVID-19. 40
While USDA subsequently withdrew its plan to increase line speeds at poultry plants by regulation, dozens of plants still operate under waivers, allowing them to process 175 birds per minute. 41 A federal court recently invalidated the part of the agency action increasing pig line speeds. 42 While a request to stay the invalidation pending appeal was denied (even though USDA did not oppose the stay), 43 the USDA is now attempting to sidestep the rulemaking process by creating a so-called trial program that will allow up to nine facilities to apply to operate at faster processing-line speeds. 44
Increases in line speeds cause negative downstream effects. To fulfill a steady supply of animals to meet these high rates of slaughter, production too must increase. 45 As such, the unsafe conditions during slaughtering and processing are sustained by the unsustainable scale of industrial animal agriculture in CAFOs. For the sake of the animals, workers, and food safety, USDA should revoke the waivers for poultry plants and reverse course on eliminating maximum line speeds for pigs.
ENVIRONMENTAL AND SOCIAL JUSTICE ISSUES
At the end of all this wreckage lies an uncomfortable truth: these nuisance conditions were unlikely to have persisted for long—or even to have arisen at all—had the neighbors of Kinlaw Farms been wealthier or more politically powerful.—J. Wilkinson
Slaughterhouse and farmworkers risk their lives to keep up with the public demand for meat. These workers are often from disenfranchised groups—many are immigrants, Black, Indigenous, People of Color (BIPOC), living on low incomes, or otherwise marginalized. 46 Similarly, those who live in the communities surrounding these operations are also often oppressed or disadvantaged. 47 These community members suffer many discrete and pervasive harms from health problems and reduced life spans to air and water pollution to noise, odor, and aesthetic harms to decreased property values and diminished ability to use outdoor space or recreate safely. 48 In Judge Wilkinson's view, these “harms are well established, almost to the point of judicial notice, to be visited disproportionately upon the dispossessed—[in the McKiver case] on minority populations and poor communities.” 49 The unacceptable truth that Judge Wilkinson pointed to is that these harms would not have been tolerated for as long as they have been had the surrounding community been “wealthier or more politically powerful.” 50
Fortunately for the plaintiffs in the McKiver matter, the court understood that our long-standing tort traditions are designed to protect not just the rich but everyone, especially from unreasonable, willful, and wanton conduct like that of Smithfield. But this result has been a long time coming, built upon many other disenfranchised communities that have suffered and continue to disproportionately bear the harms of big agribusinesses that have for too long acted with impunity. 51
President Biden has committed to addressing issues of inequality in the environmental sector and bringing higher visibility to those who environmental injustices have negatively impacted. 52 Environmental justice should be top of mind when reviewing for deficiencies in federal rulemakings. A standing executive order requires agencies that choose to raise environmental justice when assessing an action to examine whether there are “disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.” 53 But agencies have not often lived up to that obligation.
When developing its HPAI response plan, USDA failed to evaluate its environmental justice impacts. First, the agency claimed that there was “no way of determining” the effects in advance but then concluded that its plan “poses no disproportionate adverse effects to minority and low-income populations.” 54 This statement is entirely contradictory and legally inadequate, especially when the agency knows that there is a correlation between race, income, and exposure to hazardous waste disposal (animal carcasses included). As Judge Wilkinson put it, this connection is “well-established—almost to the point of judicial notice.”
LEGISLATIVE BACKLASH AND RIGHT TO FARM ACTS
The scale of industrial hog farming is no warrant to ride roughshod over the property rights of neighbors, the health of workers and community members, and the lives of the hogs themselves.—J. Wilkinson
Disappointingly, not everyone has the same sensibilities as Judge Wilkinson. While the Smithfield nuisance cases were being litigated in the Eastern District of North Carolina, the North Carolina legislature amended the State's Right to Farm Act (RTFA), limiting what remedies are available for nuisance actions to lost property value—meaning that those who experience similar harms to the plaintiffs in McKiver could no longer recover for damages relating to their suffering, annoyance, and loss of enjoyment. 55 This change heavily stymies restorative action and strips away long-standing property rights and protections of many already disenfranchised people. A legal challenge to North Carolina's RTFA was recently dismissed on appeal. 56
However, all is not lost. Following the successful series of nuisance cases against Smithfield, aggrieved neighbors of similar CAFOs filed a new suit, bringing additional causes of action, including trespass, negligence, and unjust enrichment. 57 Unsurprisingly, Smithfield argued that North Carolina's newly amended RTFA bars each of these actions. Fortunately, the district court recognized that negligence, trespass, and nuisance are distinct causes of action that should be considered on their own merits and so declined to dismiss the case. 58 (Unfortunately, we have seen this approach go sideways in other jurisdictions. Courts in Indiana have found contrarily that its RTFA, which only references nuisance, also protects against negligence and trespass claims perceived to be “repackaged” nuisance claims). 59
Legislative backlash is always a possible unintended consequence of pursuing any lawsuit, especially against parties associated with politically powerful industries. 60 Newly enacted legislation extends Florida's RTFA to protect CAFO operators against not only nuisance, negligence, and trespass but also claims of personal injury, strict liability, and other torts. 61 This law aims to shield farms, including large CAFOs, from multiple tort actions unless the challenged activity arises from the operation's noncompliance with state or federal environmental laws, regulations, or best management practices or is located within half a mile from the complainant's property. The law defines “Nuisance” as “any interference with reasonable use and enjoyment of land, including, but not limited to, noise, smoke, odors, dust, fumes, particle emissions, or vibration. The term also includes all claims that meet the requirements of this definition, regardless of whether the plaintiff designates those claims as brought in nuisance, negligence, trespass, personal injury, strict liability, or other tort.”
The Florida Right to Farm law contains caveats that, at first glance, appear to provide some balance, such as excluding conduct that does not comply with state and federal environmental laws. But to a striking degree, federal environmental laws have insufficiently regulated harmful agricultural practices that contaminate the air, water, and soil and generate large amounts of greenhouse gas emissions. 62 Lately, these laws have been weakened even further. For instance, under recent Environmental Protection Agency (EPA) guidance (although allegedly unlawful guidance), CAFOs are no longer required to report harmful emissions under The Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. §§ 13101 et seq., a law designed to help warn community members of possible hazards such as dangerously high levels of ammonia or hydrogen sulfide in their area. 63
Even if laws such as EPCRA were applied to industrial agribusiness operations to their fullest extent, many operations would still be below the thresholds that trigger these laws, yet nonetheless, create substantial nuisances for neighbors. 64 State environmental laws do very little to fill in the gaps. 65 Still, these environmental laws were not meant to address the same harms as the centuries-old tort claims of nuisance, trespass, or negligence. Lawyers and advocates should be on the lookout as other jurisdictions move to introduce similar RTFA amendments.
INSURANCE PRACTICES CAN LEAD CHANGE
[P]laintiffs' suffering—stemming from Murphy-Brown's mistreatment of its hogs—was avoidable. … In fact, not one of the above problems is insuperable. Many can be mitigated [by, f]or example, … decreas[ing] the number of hogs penned in each shed. …—J. Wilkinson
Lawsuits do have unintended positive consequences from time to time as well. Following the successful nuisance cases in North Carolina, a growing number of insurers have been unwilling to cover many of the harmful activities of industrialized farming. Building upon the finding that Smithfield's nuisance-causing behavior was willful and wanton, its insurers argue that Smithfield was fully aware of the harms its practices would cause and therefore is not entitled to insurance benefits. 66 Indeed, these nuisance lawsuits show that there was nothing accidental about the injury to neighbors caused by the CAFO and that Smithfield knew about the harmful effects of its farming practices. 67
Still, Smithfield sued its insurers to force coverage for similar dangerous deeds. 68 Astonishingly, Smithfield is arguing that its ACE Auto Policy requires the insurer to cover costs associated with “Smithfield's. … operation of large trucks carrying live and dead hogs,” which “caused noise, dust, lights, and odors that reached and disturbed nearby landowners.” 69 Since such injuries cannot reasonably be characterized as arising from “an ‘accident’ involving an automobile,” the insurance company is contesting its supposed duty to cover the damage Smithfield's actives caused. 70
Insurers are increasingly refusing to pay for industrialized agriculture's known harmful and dangerous practices. Heightened awareness of the clear public health risks related to extreme animal confinement and related harmful practices of Big Ag may reinforce the tendency of insurers to decline coverage or increase premiums. The risk of zoonoses from factory farms is like the risk of forest fires from power lines. 71 As the stakes become more apparent and substantiated, insurers may have an incentive to condition coverage on less risky practices—such as lower stocking density and cage and crate-free operations.
TRANSFORMATIONAL CHANGE IS NEEDED
Finally there is Wilbur, the pig who was friends with a spider, a rat, geese, sheep, cows, and a little girl. Charlotte's Web reminds us that all life is interconnected. And while not all pigs will be pardoned like Wilbur, it is fitting that the creatures who give their very lives for us, receive in return our efforts to make their brief stay on earth less intolerable. For their sake and for ours. Such is the web of life.—J. Wilkinson
It is certainly tempting to view the recent actions by insurers, along with Judge Wilkinson's remarkable concurring opinion, as an indication of an emerging shift in public attitudes and public policy concerning industrialized animal agriculture and its deplorable treatment of farmed animals. In addition to animal welfare, society will need to take greater account of the many burdens industrialized animal agriculture disproportionately places on marginalized communities and the harms it causes our environment and climate. Transformational change in this sector will depend on stronger alliances between environmental, animal, social justice, workers' rights, public health, and other interests. Consistent with Judge Wilkinson's resonant observation: “[F]or the animals' sake and for ours, we should take efforts to make farmed animals lives less intolerable.” 72
Footnotes
ACKNOWLEDGMENTS
The author would like to acknowledge the Harvard Law School Brooks McCormick Jnr Animal Law & Policy Program and its past and present fellows for providing valuable guidance. The author also thanks Donald Garlit for encouraging the writing of this article.
DISCLAIMER
These contents are solely the responsibility of the author. The views expressed herein are those of the author and do not necessarily represent the official views of the author's affiliated organizations.
AUTHOR DISCLOSURE STATEMENT
No competing financial interests exist.
FUNDING INFORMATION
Funding for the open-access publication of this article was provided by the American Society for the Prevention of Cruelty to Animals® (ASPCA®) Open-Access Publishing Fund.