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No winners in chicken lawsuit

Last week, a federal judge in Baltimore issued a verdict in a lawsuit filed by an environmental group against an Eastern Shore farming family and Perdue. After nearly three years of litigation, Judge William Nickerson ruled that the evidence presented by the Waterkeeper Alliance did not demonstrate conclusively that contaminated water samples taken from the Pocomoke River could be traced to an adjacent poultry farm in Berlin owned by Alan and Kristin Hudson.

The outcome was recognized by many as a victory for farmers and the poultry industry and as a setback for environmental groups interested in improving the water quality of the Chesapeake Bay and its tributaries. The case had drawn national attention both for serving as a litmus test for the effectiveness of citizen suits filed against individual farmers and as having potential implications for contractual relations between Big Chicken and its growers.

However, the real outcome of this case is yet to be decided. The need to reconcile the interests of the farming community with those of environmental groups remains. An inability to recognize this need and a failure to work toward finding a balance of these interests would represent a lost opportunity.

Farming represents the largest commercial industry in Maryland. Aside from a handful of tourism-based areas, agriculture dominates the economy of the Eastern Shore. The great number of chicken farms found throughout the region help to place Maryland among the national leaders in chicken production. Perdue, a multinational chicken corporation headquartered in Salisbury, is an important player in the state's economy.

However, growth of the poultry industry over the past several decades has precipitated declines in the health of many of the Eastern Shore's waterways. Studies have indicated that concentrations of nitrogen and phosphorus in rivers have grown over the years. Granted, correlation does not necessarily mean causation, and nutrient runoff can be attributed to multiple sources. Still, to arrive at the conclusion that runoff from farms contributes at least somewhat to the nutrient contamination problem does not require much of a logical leap.

Restoring the health of these waterways is a necessary step in the efforts to improve the health of the Chesapeake Bay. However, the best vehicle for achieving this end is not at all clear. Many observers consider litigation in the form of citizen suits under the Clean Water Act to be far from desirable. Such suits are expensive and consume both time and resources. And as Judge Nickerson's opinion suggests, the burden to prove a specific source of waterway contamination is very great.

Some argue that regulation of individual farms should be left to government bodies such as the Maryland Department of the Environment. However, this position is more idealistic than realistic. The sheer number of chicken farms on the Eastern Shore dwarfs the available manpower of regulatory agencies. There are too many potential contributors to the problem, and not enough regulatory agents to sort those who are in compliance from those who are not.

What about the role of the industry itself? One issue is the industry's responsibility to monitor the practices of its growers. Like some other companies, Perdue does take steps to educate the farmers with whom it contracts regarding how to properly dispose of chicken waste. This is positive, but whether such programs represent sufficient action by the industry is debatable.

Another industry-related issue involves the contractual relations between the parties. While typical grower contracts offer specific instructions regarding how to feed and raise chickens, the handling of waste is largely left to farmers — ostensibly freeing the companies from Clean Water Act liability. The argument that poultry companies are in a stronger position than individual farmers to be able to deal with enormous amounts of waste has merit. Moreover, greater involvement by the industry in the handling of waste would likely result in less variability in outcomes and in a greater ability for government bodies to effectively regulate waste disposal.

In the case involving the Hudson Farm, no "good" outcome was possible. The Hudson family and Perdue were found not liable, to the dismay of many environmental groups. But a victory by the other side may have resulted in a family being forced to sell the farm that it had held for generations in order to cover fines and legal fees.

In the bigger picture, though, an optimal outcome can still be reached: a realistic balance between protecting our vital waterways and maintaining a way of life and an important industry. We should start by creating a dialogue involving all parties. A failure to shift the focus from a single lawsuit to a discussion of solutions to the larger issue would represent a failure for all. The legacy of this case should be found not in its ruling but instead in its aftermath.

Joseph L. Kroart III, a student at the University of Maryland Carey School of Law, is a former Eastern Shore resident living in Monkton. His email is joeykroart@umaryland.edu.

Copyright © 2015, The Baltimore Sun
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