Saturday, March 25, 2006

A Brief Analysis of Iowa's Hog Lot Controversy

This is a memo I submitted to the Kerry campaign. It went nowhere.


I. Introduction.

The so called ‘hog lot controversy’ in Iowa is reflective of the concerns of a varied constituency, so understanding the scope and breadth of the debate connotes an knowing who the stake holders are and what they are concerned about. The ‘controversy’ is three dimensional-it subsumes quality of life issues, environmental implications, and the common and statutory law of nuisance. It has become a lightning rod for an entire range of rural social and economic concerns as well.

At heart, much of this issue is a disagreement between proponents of traditional Jeffersonian values and the interests of vertically integrated industrial agriculture.

The burning question is whether industrialized, vertically integrated and technically efficient mass production of market hogs in pig factories can coexist with rural constituencies. On the one hand are a diverse constituency of interested people that include small family farmers, alternative agriculture and organic growers, niche marketers of high end pork products, animal rights advocates, rural advocates, community activists and rural residents. Arrayed against them in a perceived David and Goliath stackup are large corporate interests and in many cases absentee landlords, although many industrialized hog farmers are local people which introduces internecine strife in the mix.

The first thing to understand is that, as a generality, pigs stink, and large numbers of them in a small area without an adequate means of handling the manure they produce can be very offensive. One need not have a dainty nose to understand the principle, and it has created impossible burdens on people who are unfortunate enough to have a large confinement operation sited near them, even if they are rural people accustomed to animal odors. However, the industrialization of hog production, driven by cost concerns to shed external costs, has exacerbated a situation that was always part of life in a farm state and enlarged it to a civil war between industrial hog growers and rural people.

Specifically, large industrial hog factories have handled the waste that the animals produce by flushing it out of the production buildings into open-air ponds euphemistically called lagoons. There the waste sits until it is needed for fertilizer, if ever. This in itself can impose significant costs on counties if the producer files for bankruptcy, as happened in 1994 in Cherokee County Iowa, or abandons the property.[2]

Many technically feasible ameliorative measures can be undertaken that have not being done by industrial growers because they have not been as yet substantially and effectively compelled to, either by regulation or otherwise. The reasons for this are simple: weak enforcement of environmental laws and until recently in Iowa, substantial immunity from nuisance lawsuits arising from odors.[3] The lowest cost production model ruled out substantial efforts to control odors and other problems as uneconomical. There is simply no great incentive at present for factory farm operators to respect their neighbors or the environment.[4]

Another major issue yet to be fully understood is the cumulative cost of air and water pollution that has been occasioned by poorly regulated factory farms. Water pollution from manure runoff and agricultural drainage wells is an ongoing problem in Iowa.[5] Although odors are not generally recognized as pollution per se, the constituents of manure odors (ammonia, hydrogen sulfide, methane etc.) can be air pollutants in and of themselves in sufficient amounts.

Another issue related to the previous ones is the profound effect on rural residents, their lives, and their property values that are occasioned by large agricultural nuisances. Such a nuisance can, for all intents and purposes, demolish the wealth of a life’s work and whatever quality of life can be experienced in country living. A property experiencing such problems is unlikely to be salable except as yet more agricultural land and thus not worth the housing built upon it.

2. Is there a right or wrong to the controversy?

The industrial pig is bred and raised for the maximum amount of lean meat attainable, although this is clearly done at the expense of palatability. Market forces have compelled this, as Americans demand low cost, plentiful, high quality meat products and as farmers have become more export dependent. There is research that indicates that the stress of confinement has negative effects on flavor and palatability of the end product, but taste is not foremost in the production of hogs destined for the supermarket.

Confinement operations raise animals in close confinement, many of which are raised on slats for ease of disposal of waste. The waste is flushed out into open air waste ponds euphemistically called “lagoons”. This method of production is much more efficient in terms of feed conversion ratios than free range production but it is offensive. It points to the argument that Iowa’s right to farm law never anticipated technological developments of this nature.

Free range hogs or hoop barn on deep bedding production systems are no more offensive than other livestock businesses, but these old style traditional operations are a small (but growing) part of modern pork production because they are not geared to maximum efficiency-rather, they are geared to the foreign market and to the white tablecloth restaurant and upscale trade. The old fashioned production systems are rating a new look because the product is more edible and tasty, and this fact makes alternative pork production economically viable if the end product can be retailed for 50-100 per cent more than supermarket pork.

3. The packer feeder prohibition

Under Iowa law meat packers have been prohibited from owning animals for slaughter, thus preventing Tyson-style vertical integration of the hog business in Iowa. This prohibition has produced two results. First, many industrial hog producers have moved to regions of the country where this prohibition does not exist. Second, Smithfield Farms has litigated the constitutionality of the packer feeder prohibition and has convinced U.S. District Court Judge Pratt that the packer feeder prohibition impermissibly interferes with interstate commerce. Review in the appeals courts is certain.[6]

The outcome of voiding the packer feeder prohibition, if upheld at the appeal level, will allow packers to own the pig from conception to consumption. Likely this will erode the viability of small producers of market hogs as they will find fewer free markets for their pigs. If the past is prologue we need only look to the demise of the independent poultry producer in this country, substantially eliminated as a class by vertical integration. Likely we will see the increase of contract production and the reduction of formerly independent farmers to contract workers who own nothing but environmental liability, unusable buildings, and unpaid bills.
[1] Robert W. Luedeman is an attorney who practices in Des Moines, Iowa. He holds the L.L.M. in Agricultural Law from the University of Arkansas-Fayetteville. Prior to attending law school he was a journeyman aircraft mechanic and inspector. The views expressed are his own.
[2] Bryant Beef filed for bankruptcy in 1994 after pesticide residues were found in their product. At the time they operated a feedlot in Cherokee County, Iowa with an adjacent 18 acre manure lagoon that became the property of the county and which requires ongoing monitoring and maintenance.
[3] In William Aldred’s Case, 77 Eng. Rep. 816 (1610) a farmer erected a pigsty adjacent to another man’s parlor. The farmer’s lawyers argued that Aldred had a delicate nose but the court held for the plaintiff, saying that “ …(I)t may be that before time of memory (a landowner has had a right to) wholesome air” on his property.
[4] Like all the other states Iowa has had so called right to farm legislation which provided some level of nuisance lawsuit protection for livestock operations. In 1998 the Iowa Supreme Court invalidated the state’s Chapter 352.11 agricultural nuisance lawsuit shield as an unconstitutional taking without compensation.[4] At present, Iowa law protects animal feeding operations from nuisance lawsuits if they utilize best management practices.
[5] It was discovered many years ago in Iowa that an efficient way of draining farmland was to punch through the limestone cap and let water drain from overlying farmland into a subsurface aquifer. This was of no great import until the advent of chemical fertilizers and insecticides, as well as large earthen manure pits on farms that had unplugged drainage wells, particularly in Wright County, Iowa.
[6] Smithfield Foods v. Miller, 4:02-CV-90324 (S. D. Iowa) 2002.


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