Neighbors of two overcrowded East Texas poultry farms deserved relief from sudden stenches emanating from the chicken barns, the Texas Supreme Court said, but a trial judge went too far in permanently closing the operations.
Frank Blanchard and other neighbors of the farms are entitled to permanent injunctive relief, said the court in remanding the Henderson County case for consideration of other remedies to abate the odor, such as reducing the flock size and more frequent barn cleanings. The trial court also should consider on remand the extent to which it is possible to disaggregate the conduct of individual defendants, including the individual growers and Sanderson Farms, which delivered chicks to the farms and hauled them away when they grew large enough for processing.
“We conclude that the trial court abused its discretion by shutting down Defendants’ entire operation permanently as its very first remedy, and by barring them from conducting any husbandry activities within a five-mile radius,” said Justice Brett Busby, author of the 92-page opinion.
While the decision was unanimous, a group of justices joined a concurrence written by Justice Rebeca A. Huddle that was critical of Busby’s “winding path” to its conclusion. Busby included detailed descriptions about smells of death, ammonia and manure emanating from the hundreds of thousands of chickens on adjacent farms owned by Steve Huynh and operated separately by his son and cousin.
“I grant that chickens stink — a lot — and that growers do not contest that some of their business practices failed to pass the smell test,” Huddle said. “But the Court meanders, occasionally fighting the jury’s resolution of factual disputes and failing to emphasize that what really matters for today’s purposes is not the chickens’ stench or the growers’ transgressions but, rather, the trial court’s decision to issue a shutdown injunction of a lawful business as its very first attempt to craft an equitable remedy.”
The case was closely watched by agricultural interests, who expressed concerns in an amicus letter that if the court failed to modify the order nuisance law could be used across Texas to limit industrial animal operations. The court denied a motion from the neighbors to refuse to consider the amici brief and to order its return.
The court essentially agreed with the agricultural interests that management practices to reduce odors could have been required to avoid shuttering the farms.
“Given the lack of evidence to support discounting the ability of these and any other available methods to constrain the odors from Defendants’ activities below nuisance levels, the trial court had no basis to determine that a full shut-down was the sole means of fully abating the Neighbors’ nuisance-level inquiry.”
The case also attracted interest for the high-profile lawyers — Paul Clement and Wallace Jefferson — representing the growers. Jefferson, the former Texas Supreme Court chief justice who practices at Alexander Dubose & Jefferson, handled arguments last October. Clement, who participated in the briefing, is the former U.S. solicitor general known for advocating conservative causes and charging ever-increasing legal fees.
M. Keith Dollahite of Tyler argued for the property owners, who filed suit in May 2017, roughly a year after the farms began operating.
A jury found in October 2019 that the operation was a temporary nuisance and gave neighbors nearly $6 million for the lost market value of their properties. The parties later agreed to a take-nothing judgment regarding the monetary damages.
The Twelfth Court of Appeals affirmed the injunction.
Busby’s opinion discussed in detail the facts and history of the dispute and numerous prior cases interpreting state nuisance laws. He focused on evidence that the growers included misrepresentations about the location of nearby neighbors and the fact that the two farms were contiguous in seeking approval from state agencies to begin operations.
The opinion says that the growers misrepresented who was controlling and operating the farms to obtain federal subsidies that help them operate “larger odor-producing facilities.” A Sanderson representative who talked to a neighbor upset about the smells told the neighbor to stay indoors during the days when workers were capturing the flapping chickens for transport.
When the Texas Commission on Environmental Quality started investigating, little was done by the growers to abate the odors, evidence showed.
“Here, the Neighbors not only testified that the fetid odors were ever-present and the risk of sudden stenches destroyed their ability to plan and enjoy outdoor activities, they also presented the jury with their logs documenting 330 instances of nuisance odors, and Defendants’ own expert detected an odor of chicken nature 136 times over forty-four days of conducting readings,” Busby said.
Busby said the trial judge was correct to focus on the likelihood of the neighbors suffering future harm and whether they would have an adequate remedy in monetary damages. The judge also was correct to consider the environmental agency’s lack of authority to address nuisance odors through administrative and judicial means.
“Thus, obtaining full relief for this kind of nuisance can require multiple and frequent suits, and we have recognized the costly and inefficient nature of such suits as a basis for holding the legal remedies inadequate,” he said.
The court balanced the growers’ failure to address concerns with the public benefit of growing chickens for food. “Taking these equitable considerations together, we hold the trial court did not abuse its discretion in concluding that the balance tips in favor of an injunction that fully abates the Neighbors’ injury from nuisance level odors,” Busby said.
Huddle was joined in her concurring opinion by Chief Justice Nathan Hecht and Justice Jane Bland and in part by Justice Evan Young. They all agreed on a key issue, that with proper evidentiary support a permanent injunction can issue to abate a temporary nuisance. Young did not join the part of the opinion where Huddle viewed the court as going “astray” by discussing irrelevant evidence and “failing to clearly direct the trial court to craft an injunction that accords with the Legislature’s policy choices for remedying nuisance-level chicken farm odors, as reflected in the Texas Health and Safety Code and TCEQ regulations.”
The case number is 21-0676.