By: Sabrina Tremblay-Huet
In legislation and case law about the use of non-human animals, the right to property can serve to exclude and oppress, while also, perhaps surprisingly, serving to emancipate in response to the effects of placing a profit imperative above all other interests.
In terms of exclusion or oppression, an important example is “ag-gag,” or “anti-whistleblower” legislation (and the ensuing lawsuits) in the United States (US). Ag-gag laws essentially seek to impose criminal punishment on individuals undertaking undercover investigations in factory farms, for both the act of investigation itself as well as for the means used to access the facility if this involved deceitfully seeking employment for this purpose. While the ag-gag laws of Idaho and Utah have been struck down as being unconstitutional (in the case of Idaho, affirmed in part and reversed in part on appeal in the 9th Circuit), their “chilling effect” cannot be underestimated, and the private property logic being adopted by so many state legislatures speaks volumes about its discursive power. In the case of Idaho, the 9th Circuit held that while “misrepresentations to enter a production facility” and the “audio and video recordings of a production facility’s operations” were confirmed as falling within free speech protections, “misrepresentations to obtain records and secure employment” did not.
As I expressed a few years ago in this piece, “I am […] baffled by the brazen use of the mirage of private law, and the language that is consequently shamelessly used, in opposition to concerns of free speech, consumer information, and grave animal suffering. While houses are considered private grounds, you cannot abuse animals and prevent people from reporting these acts, under many laws; yet, for the ‘different’ private property of a moral being, in our case agricultural companies, this is most legitimate under Ag-Gag laws.”
More recently, the right to use and enjoyment of property constituted the object of a jury verdict in which the impressive amount of $50 million (USD) was awarded in punitive damages on April 26 (later reversed by the Court, who on May 7 allowed the defendant’s motion to impose a statutory cap on punitive damages, leading to $250,000 in punitive damages for each of the ten plaintiffs rather than $5,000,000, in addition to the $75,000 in compensatory damages). These damages were attributed to property owners in Bladen County, whose lands neighbour an intensive pig production facility (known in the US as a “Concentrated Animal Feeding Operation” or “CAFO”), Kinlaw Farms, operated by Murphy Brown, in McKiver, et. al v. Murphy-Brown, LLC, No. 7:14-CV-180-BR. The first question asked to the jury, and the only one on the facts of the case and to which it answered “yes,” was: “Did the defendant substantially and unreasonably interfere with the plaintiffs use and enjoyment of his or her property?”
The plaintiffs filed their complaint on August 21, 2014 to the United States District Court for the Eastern District of North Carolina. The plaintiffs claim that Murphy-Brown “failed to take adequate steps to manage the number of hogs at the sites or dispose of the millions of gallons of manure that come from the hogs,” “failed to take appropriate steps to eliminate the obnoxious recurrent odors,” that the pigs “caused periodic swarms of flies, other insects, and other pest,” and “necessitate very large trucks crawling up and down the streets outside of the Plaintiffs’ homes” (para. 2, 3, 4). The presence of “swine sites” is also documented as being detrimental to property values (para. 137). They argue that Murphy Brown possesses the means to end the use of the “lagoon and sprayfield” agricultural system, which has been prohibited for new North Carolina farms since a 1997 moratorium was re-enacted in 2007 (para. 5, 6, 116). Furthermore, it is Murphy Brown that “owns” the pigs, rather that Kinlay Farms who only “houses” them (para. 97). Kinlaw Farms holds about 14,688 pigs, “generating 27,907 tons and a volume of approximately 7.5 million gallons per year of manure, feces and urine” (para. 100).
Environmental justice has long been concerned with the disproportionate effects of pollution on racially and economically marginalized populations. The median income in Bladen County is $30,164, as opposed to the $46,334 median income for North Carolina more broadly. In addition to the property-related nuisances that living near hog farms may cause, its demonstrated health effects cannot be underestimated (such as mood, respiratory, and immune system issues), nor can its environmental consequences (such as an immense contribution to greenhouse gas emissions through manure, as well as groundwater and air pollution). North Carolina is infamously notorious for its “noxious pig farms,” with claims of environmental racism also being related to “hog country.”
It is especially interesting to note that the 1997 moratorium was adopted in the context of a fear that CAFOs would be constructed around golf courses (para. 117). This thinly-veiled classist fear, which led to legislation indeed prohibiting the practice, supports the environmental justice argument that pollution-inducing industries are located in areas where their manifold forms of nuisances fall on marginalized, rather than privileged, communities.
Like the US, Canada is a major centre for industrial agricultural production, including industrial animal agriculture, and so despite the different legal regimes at play, the environmental justice issues associated with industrial animal agriculture are just as relevant across the border. It will be interesting to see how courts’ approaches to these issues will diverge or converge in coming years.
The right to property is a social construction, in constant intersubjective movement, to use constructivist vocabulary. Property law must thus be interpreted by taking into account the conflicting interests in the context of a dispute about an element that has been socially and materially appropriated while considering its possible infringement on the equal property rights of competing appropriation. The appropriation of non-human animals, of course, has been at the social and legal source of innumerable harms. But: here’s to hoping other examples of courts’ interpretations of the right to property in favour of environmental justice for communities living in vicinity of factory farms will soon appear in other contexts, and might alarm societies to the various manifestations of the harms of factory farming aside from the obvious non-human animal suffering.
Sabrina Tremblay-Huet is a doctoral candidate and lecturer at the University of Sherbrooke’s Faculty of Law, and was recently a Visiting Research Fellow at Fordham University School of Law. She is a co-founder and member of the Critical Legal Research Laboratory (CLRL). Her research focuses on legal theory, international human rights, tourism law, law and literature, and animal law.