14
meat, eggs, or milk. A CAFOs allows farmers to reduce costs, which results in
greater profit and more economic incentives to increase farm size, but creates many
environmental problems. Aware of these problems, the Environmental protection
Agency (EPA), under the Clean Water Act (Sect. 502, CWA, 1972), than implemented a strict pollution control program—the National Pollutant Discharge
Elimination System (NPDES)—setting the effluent limitation guidelines and standards (ELGs) for CAFOs. Under this regulation, farms industries should develop, and
implement an adequate management plan for treating or processing their waste.
Nevertheless, ruling in favor of farm producers, the judges of the Second Circuit
Court of Appeals (in Water Keeper et al. vs. the EPA (2005) 399, F.3d 486)
allowed alteration to the CAFOs permitting system. As a consequence of this decision, in October 2008, the Environmental Protection Agency (EPA) issued a new
regulation to revise the rules governing the waste discharges from CAFOs. The current CAFO’s rule eliminates the so called “duty to apply”, i.e. the duty for the industries, either to apply for discharge permits or to demonstrate that they have no potential
to discharge, and merely establishes the right of the environmental groups to access
to the management plans. The same in Europe. The Dir. 91/676/EEC requires
Member State the elaboration of Action Programs for the agronomic use of zootechnical waste (i.e. communication spreading and, if imposed, the Agronomic Utilization
Plan). This Directive is still poorly respected due to the high number of intensive
farms, the opposition of the producers and the few areas suitable for waste disposal.
Even in the presence of a regulation, no doubt that the spraying of liquid manure
on local fields or its storage in ponds exposes the residents to adverse mental and
physical health outcomes, harmful odors, diseases such as respiratory issues, nausea,
increased blood pressure, asthma symptoms for children (Wing et al. 2012). The
example coming from the hog farms, in USA, is paramount. In 2004 people living in
North Caroline, near Concentrated Animal Feeding Operations (CAFOs), successfully persuaded the jury that industrial-scale hog operations created nuisances to
their health and property. The overwhelming odors that cannot get out of the clothes,
the toxic emissions and the swarms of insects entitled residents to bring an action in
nuisance, in order to recover from the damages suffered. In Gillis v. Murphy-Brown,
LLC (E.D.N.C., No. 14-cv-00185, jury verdict 12/12/18), the judges than recognized
that Smithfield Foods was liable for the damages caused by the high-density livestock operations, but awarded to the nine plaintiffs only compensatory damages. The
dismissal of punitive damages claim was based on the fact that, under North Carolina
law, punitive damages only serve “to punish a defendant for egregiously wrongful
acts and to deter the defendant and others from committing similar wrongful acts”
(N.C. Gen. Stat. § 1D-15). In the case at issue, the judges found that the defendant
could only be held liable for compensatory damages, on the evidence of a willful or
negligent conduct. The same limitations exist under Georgia Law, whose standard
for allowing punitive damages implies the evidence of a “willful misconduct, malice,
fraud, wantonness, oppression, or that entire want of care which would raise the
presumption of conscious indifference to consequences” (O.C.G.A. § 51-12-5.1(b).
On the one hand, is worth noting that the Smithfield Foods defense was based on
the false assumption that the measures to reduce the odor were adequate, the claim
V. Zambrano
meat, eggs, or milk. A CAFOs allows farmers to reduce costs, which results in
greater profit and more economic incentives to increase farm size, but creates many
environmental problems. Aware of these problems, the Environmental protection
Agency (EPA), under the Clean Water Act (Sect. 502, CWA, 1972), than implemented a strict pollution control program—the National Pollutant Discharge
Elimination System (NPDES)—setting the effluent limitation guidelines and standards (ELGs) for CAFOs. Under this regulation, farms industries should develop, and
implement an adequate management plan for treating or processing their waste.
Nevertheless, ruling in favor of farm producers, the judges of the Second Circuit
Court of Appeals (in Water Keeper et al. vs. the EPA (2005) 399, F.3d 486)
allowed alteration to the CAFOs permitting system. As a consequence of this decision, in October 2008, the Environmental Protection Agency (EPA) issued a new
regulation to revise the rules governing the waste discharges from CAFOs. The current CAFO’s rule eliminates the so called “duty to apply”, i.e. the duty for the industries, either to apply for discharge permits or to demonstrate that they have no potential
to discharge, and merely establishes the right of the environmental groups to access
to the management plans. The same in Europe. The Dir. 91/676/EEC requires
Member State the elaboration of Action Programs for the agronomic use of zootechnical waste (i.e. communication spreading and, if imposed, the Agronomic Utilization
Plan). This Directive is still poorly respected due to the high number of intensive
farms, the opposition of the producers and the few areas suitable for waste disposal.
Even in the presence of a regulation, no doubt that the spraying of liquid manure
on local fields or its storage in ponds exposes the residents to adverse mental and
physical health outcomes, harmful odors, diseases such as respiratory issues, nausea,
increased blood pressure, asthma symptoms for children (Wing et al. 2012). The
example coming from the hog farms, in USA, is paramount. In 2004 people living in
North Caroline, near Concentrated Animal Feeding Operations (CAFOs), successfully persuaded the jury that industrial-scale hog operations created nuisances to
their health and property. The overwhelming odors that cannot get out of the clothes,
the toxic emissions and the swarms of insects entitled residents to bring an action in
nuisance, in order to recover from the damages suffered. In Gillis v. Murphy-Brown,
LLC (E.D.N.C., No. 14-cv-00185, jury verdict 12/12/18), the judges than recognized
that Smithfield Foods was liable for the damages caused by the high-density livestock operations, but awarded to the nine plaintiffs only compensatory damages. The
dismissal of punitive damages claim was based on the fact that, under North Carolina
law, punitive damages only serve “to punish a defendant for egregiously wrongful
acts and to deter the defendant and others from committing similar wrongful acts”
(N.C. Gen. Stat. § 1D-15). In the case at issue, the judges found that the defendant
could only be held liable for compensatory damages, on the evidence of a willful or
negligent conduct. The same limitations exist under Georgia Law, whose standard
for allowing punitive damages implies the evidence of a “willful misconduct, malice,
fraud, wantonness, oppression, or that entire want of care which would raise the
presumption of conscious indifference to consequences” (O.C.G.A. § 51-12-5.1(b).
On the one hand, is worth noting that the Smithfield Foods defense was based on
the false assumption that the measures to reduce the odor were adequate, the claim
V. Zambrano