I. Introduction

This paper examines the efforts at the state level of Indiana to regulate intensive animal farming.  It begins by looking at the problem posed by animal farming in Indiana and then turns to analyze two bills introduced in the Indiana legislature in an effort to control Confined Feeding Operations (“CFOs”).  The paper looks at the development of those bills through legislative history and analyzes the chances these bills have of passing the legislature this session.  Next, the paper discusses North Carolina’s moratoria on intensive swine farming in order to understand the ramifications of a moratorium on a state so economically dependent on animal production.  Lastly, it analyses a potential challenge to Indiana’s proposed moratorium from the lens of a regulatory taking. 

II.  Intensive Animal Farming in Indiana

It started when Mitch Daniels was elected Governor of Indiana in 2005.  During his campaign, Gov. Daniels pledged to double pork production in the state.[i]  Indiana was, and still is the fifth largest pork producer in the nation, behind Iowa, North Carolina, Minnesota, and Illinois (in order of production).[ii]  Immediately following  Gov. Daniels’ election, the Indiana Department of Environmental Management (“IDEM”), the agency that regulates agriculture, approved almost double the number of permits for Confined Feeding Operations[iii](“CFOs”) in the state.[iv]  Briefly, CFO is a facility wherein a certain threshold number (depending on the species) of animals are confined for at least 45 days.[v]

The expansion of the CFO industry in Indiana is troubling to many, especially those who live in counties that are home to many CFOs.  Just in the first quarter of 2006, IDEM approved 19 new permits.[vi]  As of 2010, there are 2,051 such facilities in Indiana.[vii]  CFO neighbors are concerned with their operations because of the pollution to air, water, and soil caused by CFOs, the increased illness rate of those living near CFOs, and the decrease in land value near CFOs.[viii]  Counties in East Central Indiana were especially hit hard with the increase in CFOs after Gov. Daniels’ election.[ix]  More than forty new CFOs were constructed in Randolph County, East Central Indiana, in the past few years.[x]  Jay County is one of the few counties in Indiana with fifty or more CFO permits.[xi]  Both counties are among the most popular for new hog CFO sites.[xii]  It should not be a surprise that the Indiana State Senator representing constituents in these counties is also the Senator that is most outspoken about the need for CFO regulations.

A.       About Senator Allen Paul

Senator Allen Paul, Republican, represents District 27, which encompasses Randolph, Jay, and Wayne Counties.[xiii]  According to Sen. Paul, constituents repeatedly voice concerns about CFOs in their neighborhoods.  Most notably, they report fear of E.Coli contamination, smell of manure, and difficulty selling their homes due to neighboring CFOs.[xiv]  Sen. Paul acknowledges the need for more regulation of CFOs, and advocates a moratorium on the construction and expansion of CFOs so as to give the legislature and IDEM time to catch up with the industry’s resounding growth.[xv]  His determination in introducing annual moratoria in each legislature session is likely a policy move to appease his constituents who bear the brunt of the industry’s growth.

Since Gov. Daniels took office in 2005, there have been numerous legislative attempts at curbing or regulating CFOs in Indiana.  Most of the attempts have failed, but certain members of the House and Senate have shown persistence and tenacity towards the need for this type of legislation.  The various attempts will be discussed in turn below.

B.     Confined Feeding Operation Approvals

Currently, Indiana statute proscribes expansion or construction of CFOs without prior IDEM approval.[xvi]  Although the language is unclear, it would seem to also bar expansion or construction of CAFOs as well.  CFOs are defined in the Code as any confined feeding of: at least 300 cattle, 600 swine or sheep, 30,000 fowl, or 500 horses, and CAFOs consist of 3,000 cows (including for milking), 200,000 chickens, 10,000 swine, etc.[xvii]  Further, the Indiana Administrative Code gives further clarification to the definition of  “confined feeding”:  it is the “confined feeding of animals for food, fur, or pleasure purposes in lots, pens, ponds, sheds, or buildings” where vegetation does not cover at least 50% of the area, and where animals are confined for at least 45 days within 12 months.[xviii]  Under the law, CFOs need departmental approval when expansion would increase animal and/or manure containment capacity.[xix]  Nowhere in the code or regulations is “manure containment capacity” or “animal capacity” defined and so their common meanings are likely used.

The most extreme legislation introduced to curb CFOs in Indiana would amend the statute requiring that CFOs receive IDEM approval.  By mandating that IDEM refuse to approve permits from July 30, 2011 to  July 1, 2014, S.B. 113 provides for a moratorium on the construction and expansion of CFOs in the entire state.  As noted above, Sen. Paul of District 27 is behind this legislation.  Sen. Paul first introduced the moratorium in the 2007 legislative session, and substantially similar bills have been renewed in each session since.[xx]

The current version of the bill, S.B. 113 introduced in January 2011, places a moratorium on the construction or expansion of Confined Feeding Operations[xxi](“CFOs”) in the state until July 2014.[xxii]  As such, S.B. 113 proposes to amend Indiana Code 13-18-10-1 which currently requires CFOs to receive IDEM approval before construction or expansion.[xxiii]  Importantly, the fiscal impact statement of the proposed bill suggests negligible state impact.[xxiv]  While revenues would be slightly decreased due to the moratorium (currently CFOs pay a $100 application fee), expenditures would also decrease (no review of permit applications by IDEM).[xxv]  Essentially, the decrease in state expenditures would neutralize the loss of revenue.[xxvi]

S.B. 113 was referred to the Committee on Energy and Environmental Affairs, and remains pending there without any date scheduled by the committee to discuss it.[xxvii]  Likewise, the two prior bills proposing to establish moratoria on CFOs, S.B. 50 and S.B. 61, were referred to the same committee and were never scheduled for a hearing.[xxviii]  As such, there are no informative committee notes that would shed light on the possibility that a moratorium could pass either chamber of the Indiana Legislature. 

Because the Committee has never scheduled a hearing on any of the bills proposing a moratorium, legislative history is very sparse.  However, it is possible to glean some understanding of the bills by comparing the three versions that were introduced by Sen. Paul in the most recent legislative sessions.  The current bill, S.B. 113 proposes a moratorium on both construction and expansion of CFOs, while past versions only proposed to suspend construction of them.  Thus, the newer version is much more far-reaching than past versions, which is surprising given that the past versions were not even granted committee hearings.  It is possible that Sen. Paul believed he could garner more votes by directing the bill at CFOs wishing to expand, and not just those that are to be constructed

Furthermore, the prior versions of S.B. 113 used the term CAFO, and not CFO.  CFOs are smaller versions of CAFOs, and so it follows that CAFOs are also CFOs.[xxix]  This alteration in the language of the bill serves to expand its application to both large and smaller-scale intensive farming operations. Therefore, S.B. 113’s legislative history overall indicates an intent to broaden the expansiveness of the bill, which is surprising given its unwelcoming reception in past sessions.  On the other hand, it could be that Sen. Paul has given up hope of compromise and is now trying only to appease his constituents by demonstrating his dedication to their issues.

Lastly, it is important to note that given the political climate in which S.B. 113, and prior similar bills were introduced, it is unlikely that Gov. Daniels would sign a CFO moratorium.  Although this particular moratorium would only last for three years, it would like disrupt Gov. Daniels’ goal of increasing pork production in the state of Indiana.

C.     Confined Feeding Operation Setbacks

There have been several attempts in the Indiana State legislature to mandate two-mile setbacks for CFOs from state parks.[xxx]  The first version of the bill, H.R. 1075 was introduced in the House 2009 legislative session by Representatives Cheatham and Bischoff.[xxxi]  In its original form, it would permanently ban the construction of CFOs and agreements for the application of manure, within two miles of any public recreational facility (including parks and reservoirs).[xxxii]  Surprisingly, the bill passed through the Committee on Agriculture and Rural Development by a margin of two votes, and passed the House of Representatives, but not without significant amendment.[xxxiii]  The bill was amended to provide an exception for the expansion of CFOs and smaller agricultural operations that would become CFOs.[xxxiv]  It was also amended to provide setbacks of CFOs from parks and reservoirs owned and operated by the state.[xxxv]  These amendments also serve to dilute the original bill, thereby allowing CFOs to expand within two miles of a more limited number of parks and reservoirs (only state owned and operated as opposed to any public recreational facilities) bill passed the House by a close margin of 4.[xxxvi]

Rep. Pflum tried resurrected the call for two-mile setbacks for CFOs from state parks in the 2010 legislative session by introducing H.B. 1161.[xxxvii]  A companion bill was also introduced in the Senate by Sen. Nugent.[xxxviii]  Like its predecessor, H.R. 1161 was referred to and passed the House Committee on Agriculture and Rural Development.[xxxix]  During this session, the bill was amended to provide another exception for manure application performed by postsecondary educational institutions.[xl]  Otherwise this version was the same as H.R. 1075, introduced in the last session.  With this amendment, however, the bill failed even to pass the House by a large margin of 17 votes.[xli]  It is unclear why the substantially similar bill was defeated in the House in 2010 and yet passed the House in 2009.  The only real difference between the bills was the exception for agricultural research institutions, and it is puzzling whether this change in-and-of-itself was the reason for the bill’s 2010 defeat.  It is more likely, however, that the bills ultimate failure was due to the change in party composition of the House of Representatives.  Indiana held state-wide elections in November of 2010 whereby the Democrats lost 12 seats in the House.[xlii]

In the current legislative session, Sen. Nugent re-introduced the setback bill, now S.B. 399.[xliii]  Like its predecessor, it was referred to the Committee on Energy and Environmental Affairs where it has not been scheduled for a hearing.[xliv]  It does not include the exception for post-secondary research institutions but otherwise is substantially the same as the 2010 House version.  As such, there is nothing to indicate that this bill will fare any better than its predecessors especially with the composition of the House.[xlv]

Overall, the prospect of a setback bill passing the House and Senate seems very bleak.  Senators and Representatives alike have introduced setback bills since the 2009 legislative session, and only once did a setback bill pass one chamber (but never both).  The Senate versions have always been defeated in Committee and have never been brought to a full Senate vote. 

III. North Carolina’s Long-Winded Experiment with Swine CAFO Moratoria

North Carolina, the nation’s second largest pork producer, successfully passed a series of moratoria on the construction and expansion of swine CAFOs in the state in 1997.[xlvi]  The bill, entitled the Clean Water Responsibility Act, enacted a two year moratorium on state swine CAFOs in order to give counties time to adopt local ordinances governing farms, particularly swine farms.[xlvii]  Of particular import, the Act amended a law which proscribed local counties from passing zoning ordinances for farms.[xlviii]  Further, the Act put into place limits on nitrogen discharge by certain farms and requires the promulgation of water-quality management plans by the state to restore water quality.[xlix] Interestingly, the Act was first introduced as a 16 month moratorium on swine CAFOs, but was amended to expand the moratorium for a full two years.[l]

Apparently two full years was not enough for North Carolina’s General Assembly because the moratorium was extended each subsequent year until the 2005-2006 session where a bill to extend it until 2009 died in committee.[li]  As such, the moratoria lasted until 2007.[lii]  The reasons the Assembly cited for the extension of the moratorium was to allow the swine industry to continue to work cooperatively with the government to develop and implement waste management technology.  The Assembly also cited the need for additional time for evaluation of certain waste management technology by North Carolina State University and the Environmental Review Commission.[liii]

Arguments against the Act passed in North Carolina were largely centered around the state economy and its reliance on swine production.[liv]  Opponents of the Act argued that a moratorium would kill individual jobs and income.[lv]  Those in favor argued that hog farms needed to take responsibility for the pollution of the environment.

Of course, a legal battle did ensue over the new North Carolina Act between Agribusiness and lawmakers.  The provision which allowed local counties to pass zoning restrictions on CAFOs was largely struck down by the North Carolina Supreme Court in 2002.  Shortly after the North Carolina General Assembly passed the Clean Water Responsibility Act, Chatham County passed strict zoning restrictions on swine CAFOs pursuant to the grant of power in the Act.[lvi]  The Court struck down the county’s ordinance on preemption grounds, holding that the state had enacted a comprehensive scheme for the regulation of swine CAFOs in the Swine Farm Sitting Act and the Animal Waste Management Systems statutes.[lvii]  The ruling seems to be an incorrect reading of the Clean Water Responsibility Act, which expressly authorized counties to pass restrictive zoning measures to regulate swine CAFOs.  It would be inconsistent of the General Assembly to grant this express authorization through the Act but also intend for the ordinances to be preempted by other state law.  However, the court reasoned that if the one hundred counties in North Carolina all adopted different local ordinances regulating CAFOs, this would undermine the General Assembly’s intent to create a uniform plan for the state.[lviii]  This, the court wrote, could place excessive burden on swine farms and the pork industry in North Carolina.[lix]

Most unfortunately, the ruling has apparently discouraged local attempts at regulating CAFOs; for example, one county in North Carolina actually abandoned its efforts to pass regulations on CAFO waste and instead entered into a non-binding agreement with poultry CAFOs.[lx]

On a positive note, the moratoria did allow some time for industry and regulators to work together on the state-wide level.  In 2002, the North Carolina Attorney General and Smithfield Foods, one of the largest pork producers in the world, entered into an agreement whereby Smithfield would contribute $15 million to a research study conducted by North Carolina State University on feasible waste management technology.[lxi]  Smithfield also agreed to donate one dollar per hog to a fund administered by the North Carolina Attorney General to protect water quality in the state.[lxii]

The moratoria could be seen as a success not in simple terms of limiting the number of CAFOs in the state, but in terms of allowing for more regulation of the industry which provides such vital economic support for the state.  Those who find fault with the moratoria argue that it was a failure in terms of limiting swine CAFOs in the state.  The number of hogs raised in North Carolina after the moratorium took affect in 1997 actually increased by 7%.[lxiii]  By 1998, there were 700,000 more hogs raised in the state, despite the two year moratorium in place.[lxiv]  This was largely due to loopholes in the North Carolina Act.[lxv]  According to the State Division of Water Quality which approves permits for CAFOs, 97 new permits were issued after the Act passed.[lxvi]  On the other hand, a report issued by North Carolina State University found that the moratorium did stem the number of hogs produced in the state, finding that state CAFOs would have produced three million more pigs were it not for the moratorium.[lxvii]

In addition, stricter governmental regulations of CAFOs were passed the year the moratorium finally was lifted.  In 2007, the General Assembly passed the Swine Farm Environmental Performance Standards Act.[lxviii]  This bill bans the construction or expansion of CAFOs with waste lagoons and spray fields.[lxix]  It does not require that existing CAFOs with these waste management systems be closed.[lxx]  The Act also included a pilot program for the capture of methane gas for electricity.[lxxi]

Apparently, the pilot program so far has been unsuccessful with no swine farms yet producing electricity as of 2010.[lxxii]  The most commonly cited problem is the economic investment in the technology, and the industry is not quite ready to make that investment.  Even with the state program that could fund from 75%-90% of the costs of conversion, the cost has dampened efforts to pursue the program.[lxxiii]  The federal government also has allocated $1.1 million for the conversion of swine lagoons so as to allow methane gas capture.[lxxiv]  However, a non-profit in North Carolina conducted a study and estimated that North Carolina could add 7,000 jobs and $10 billion to its economy by moving towards innovative approaches to waste management, including the conversion of methane into electricity.[lxxv]  Therefore, the effects of North Carolina’s moratoria are yet to be seen, but at least positive changes are beginning to take place in the state.

IV. Potential Takings Challenge to Indiana’s Moratorium

Should the Indiana bill calling for a three year moratorium on the construction and expansion of CFOs in the state achieve ratification and become law, lawmakers should anticipate a takings challenge from the animal farming industry.  This would likely take place as an as applied challenge to the moratorium, brought by a company with a previously granted permit by IDEM seeking to construct a CFO on a plot of land.

The Supreme Court of the U.S. has laid out several tests for takings.  In Lucas, the Supreme Court decided a case brought by an owner of two beachfront property lots in South Carolina.[lxxvi]  Two years after his purchase of the lots, on which he intended to construct single-family homes, the South Carolina legislature passed the Beachfront Management Act, which essentially barred the owner from building any permanent structure on the land.[lxxvii]  Writing for the Court, Justice Scalia held that when a regulation requires a landowner to sacrifice all economically beneficial uses of land, it constitutes a taking.[lxxviii]  The only exception to this rule which was developed from ‘noxious-use’ law, is where the owner’s desired use of the property would have constituted common law nuisance and therefore was not an available use to the owner to begin with.[lxxix]

Under the Lucas test, Indiana’s three year moratorium would not constitute a regulatory taking.  First of all, the moratorium would only last for three years, and therefore it would render a company unable to construct a CFO on a plot of land forever.  Also, there would still be multiple economically viable options for the owner of a plot of land, even if the option to construct a CFO was temporarily withheld.

Another case on point is Tahoe-Sierra Preservation Council, wherein the Supreme Court held that a 32 month moratorium on the development of land in the Lake Tahoe Basin did not constitute per se a per se taking.[lxxx]  The Court refused to establish a per se rule that would find all temporary moratoria lawful under the takings clause.[lxxxi]  Moratoria that last more than one year should be viewed cautiously, but still could be seen as reasonable and therefore not unconstitutional takings.[lxxxii]  The proper inquiry, the Court held, to whether a temporary moratorium constitutes an unconstitutional taking should be done using the test established in Penn Central.[lxxxiii]

The Penn Central “ad-hoc” test is used to determine whether a regulatory taking, which does not amount to a per se taking could anyway be unconstitutional without compensation.[lxxxiv]  The first factor in the balancing test is the character of the governmental action and extent of interference with property rights.[lxxxv]  The second factor is the economic impact of the regulation.[lxxxvi]  The third and final factor is the interference with reasonable investment-backed expectations.[lxxxvii]  In applying these factors, the Penn Central Court found no regulatory taking by New York City’s Landmark Preservation Law.  The Court reasoned that all properties deemed ‘landmarks’ were affected by the law, and therefore the petitioners were not unfairly burdened beyond others.[lxxxviii]  Also, the Court held that the entire parcel of land as a whole was to be examined, and because the law only prohibited the petitioners from exploiting certain features of the land, the remainder of the parcel could still be used gainfully.[lxxxix]  Lastly, the Court reasoned that the Landmarks law did not prevent the petitioners from realizing reasonable return on investment because other economically viable alternatives still existed on the parcel.[xc]

If it were to pass the Indiana legislature and become ratified, The Penn Central balancing test would be applied to the moratorium on CFOs.  As to the first factor, it is important to note that the moratorium would apply to all CFOs in the state, and would not be applied discriminatorily.  Unlike North Carolina’s moratoria which only affected swine CAFOs, Indiana’s would be directed at all CFOs in the state.  Secondly, the justification for the moratorium would be to promulgate regulations to protect public health, a justification that was viewed as valid in Penn Central itself. 

Although the CFOs would argue that the economic impact of the moratorium is very burdensome, this argument would be hard to backup in reality.  Because the moratorium does not prevent current CFOs from continuing their operations, they would not be heavily impacted.  In addition, the moratorium would not prevent other economic activity on parcels of land, it only removes one viable option for a period of three years.  The land still could be used to raise animals and crops without running afoul of the moratorium.  The raising of animals for food does not need to be done in concentrated and intensive fashion, but could be achieved through traditional livestock raising methods.  Lastly, the moratorium would not interfere too harshly with “reasonable investment-backed expectations” of CAFOs, mostly because of the reason already discussed (the land could still be used for other purposes).  Because the moratorium is set to last only three years, investment-backed expectations would not be thwarted for eternity, but would only be delayed.

V. Conclusion

Overall, the outlook isn’t good for Indiana’s S.B. 113 or S.B. 399.  As of February 23, 2010 both bills are still stalled in committee with no promise of movement.  There is nothing to indicate that they will not expire at the close of the session just as their predecessors did.

However, success in regulating CFOs is not an impossible feat.  North Carolina, one of the largest pork producers in the nation, succeeded in passing a series of 10 year moratoria, demonstrating that regulation of this powerful industry is both politically feasible and legally possible.  The 10 year moratoria did give time for regulations to catch up with industry growth, and innovative ideas for the use of methane for electricity are now being discussed.  Indiana should keep its eye on North Carolina over the next few years to see if environmentally positive changes take root.

Indiana will see that soon the intensive animal farming industry has outgrown its archaic regulations, if it hasn’t begun to see this already happening.  Environmental degradation due to concentrated raising of animals is a real threat, and one that constituents will surely continue to voice complaints about to their representatives.  Until more representatives listen to the needs of their constituents over the profit-motive of industry, Indiana’s environmental future will continue to look very bleak.

 

---

[i]Kirby, David, Animal Factory: The Looming Threat of Industrial Pig, Dairy, and Poultry Farms to Humans and the Environment 324 (1st ed. 2010).

[ii]Slabaugh, Seth, Opponents Warn of Dangers of Hog Industry Growth, Star Press, Sept. 13, 2010.

[iii]IDEM, Animal Feeding Operations Factsheet (2010) (on file with Author) (IDEM has divided Animal Feeding Operations into two subcategories, Confined Feeding Operations and Concentrated Animal Feeding Operations. CFOs are essentially smaller versions of CAFOs, and so CAFOs are all CFOs).

[iv]Joe Vansickle, Hoosier State Embraces Hog Growth, National Hog Farmer, May 15, 2006 at 44.

[v]IDEM Factsheet, supra note 3.

[vi]Vansickle, supra note 4.

[vii]IDEM Factsheet, supra note 3.

[viii]Institute of Science, Technology, and Public Policy, Concentrated Animal Feeding Operations (CAFOs): Assessment of Impacts on Health, Local Economies, and the Environment with Suggested Alternatives, 3 http://istpp.org/pdf/istpp_cafo.pdf.

[ix]Slabaugh, supra note 2.

[x]Kirby, supra note 1, at 323.

[xi]News Release, Paul: Bill Would Freeze New Construction, Expansion of Confined Feeding Operations, http://www.in.gov/legislative/senate_republicans/homepages/s27/4388.htm (2010).

[xii]Id.

[xiii]Indiana General Assembly—http://www.in.gov/cgi-bin/legislative/listing/listing-2.pl?data=district&chamber=Senate.

[xiv]News Release, supra note 11.

[xv]Id.

[xvi]Ind. Code. § 13-11-2-40(1) (2010).

[xvii]Id.; IDEM Factsheet, supra note 3.

[xviii]37 IAC 16-2-4 (2010).

[xix]Ind. Code § 13-18-10-1(2).

[xx]See S.B. 447, 115th Gen. Assem., Reg. Sess. (Ind. 2007); S.B. 61, 115th Gen. Assem., Reg. Sess. (Ind. 2008); S.B. 50, 116th Gen. Assem., Reg. Sess. (Ind. 2009); S.B. 113, 117th Gen. Assem., Reg. Sess. (Ind. 2011).

[xxi]IDEM Factsheet, supra note 3.

[xxii]S.B. 113, 117th Gen. Assem., Reg. Sess. (Ind. 2011).

[xxiii]Ind. Code. § 13-11-2-40(1).

[xxiv]Fiscal Impact Statement for SB 113, Legislative Services Agency (Dec. 9, 2010) (on file with author).

[xxv]Id.

[xxvi]Id.

[xxvii]See Indiana General Assembly, http://www.in.gov/legislative/index.htm (select “Bills & Resolutions” then “Complete Information for all Bills”, and then scroll down to select “SB 0113”).

[xxviii]S.B. 61, 115th Gen. Assem., Reg. Sess. (Ind. 2008); S.B. 50, 116th Gen. Assem., Reg. Sess. (Ind. 2009).

[xxix]SeeIndiana Department of Environmental Management, Confined Feeding Operations—http://www.in.gov/idem/4994.htm#what (“For purposes of discussion, it is important to remember that all CAFOs are confined feeding operations”).

[xxx]Setbacks require a certain distance between CFOs and named destinations, usually parks, lakes, or residences.

[xxxi]H.B. 1075, 116th Gen. Assem., Reg. Sess. (Ind. 2009).

[xxxii]H.B. 1075, 116th Gen. Assem., Reg. Sess. (Ind. 2009) (unamended).

[xxxiii]House Agriculture and Rural Development Committee Report on H.B. 1075 (on file with author); See Indiana General Assembly, http://www.in.gov/legislative/2414.htm (under 2009 Regular Session, select “Bills & Resolutions” then enter “1075) and select “Action List”)

[xxxiv]H.B. 1075, 116th Gen. Assem., Reg. Sess. (Ind. 2009) (amended 2009).

[xxxv]Id.

[xxxvi]Indiana House of Representatives Roll Call for H.B. 1075: Passed (Feb. 24, 2009) (on file with author).

[xxxvii]H.B. 1161, 116th Gen. Assem., Reg. Sess. (Ind. 2010).

[xxxviii]S.B. 24, 116th Gen. Assem., Reg. Sess. (Ind. 2010) (S.B. 24 was referred to the Committee on Energy and Environmental Affairs and was never given a hearing).

[xxxix]See Indiana General Assembly, http://www.in.gov/legislative/2414.htm (under 2010 Regular Session, select “Bills & Resolutions” then enter “1161) and select “Action List”).

[xl]H.B. 1161, 116th Gen. Assem., Reg. Sess. (Ind. 2010) (amended 2010).

[xli]Indiana House of Representatives Roll Call for H.B. 1161: Defeated (Jan. 28, 2010) (on file with author).

[xlii]See Secretary of State, Indiana Elections Division, Indiana General Election November 2, 2010 Results, http://www.in.gov/apps/sos/election/general/general2010?page=office&countyID=-1&officeID=1&districtID=-1&candidate=

[xliii]S.B. 399, 117th Gen. Assem., Reg. Sess. (Ind. 2011).

[xliv]See Indiana General Assembly—http://www.in.gov/legislative/index.htm (select “Bills & Resolutions” then “Complete Information for all Bills”, and then scroll down to select “SB 0399”).

[xlv]See The Indiana General Assembly— http://www.in.gov/cgi-bin/legislative/listing/listing-2.pl?data=alpha&chamber=House (As of 2/24/2011, there are 60 House Republicans and 40 House Democrats).

[xlvi]H.B. 515, Gen. Assem., 1997 Reg. Sess. (NC 1997); 1997 N.C. Sess. Laws 458.

[xlvii]H.B. 515, Gen. Assem., 1997 Reg. Sess. (NC 1997).

[xlviii]Id.

[xlix]Id.

[l]Id.

[li]H.B. 2784, Gen. Assem., 2005 Reg. Sess. (N.C. 2005).

[lii]S.B. 593, Gen. Assem., 2003 Reg. Sess. (N.C. 2003);  2003 N.C. Sess. Laws 266.

[liii]2003 N.C. Sess. Laws 266.

[liv]Patterson, Dennis, House OKs Bill to Let Counties Toughen Rules on Hog Farms, The Herald-Sun, April 30, 1997, at A1.

[lv]Christopher Kirkpatrick, Hog Industry Group Not Surprised by Spill, The Herald-Sun, July 29, 1997, at A2.

[lvi]Craig v. County of Chatham, 356 N.C. 40, 42 (2002).

[lvii]Id. at 48-9.

[lviii]Id. at 48.

[lix]Id.

[lx]Christy Noel, Preemption Hogwash: North Carolina’s Judicial Repeal of Local Authority to Regulate Hog Farms in Craig v. County of Chatham, 80 N.C.L. Rev. 2121, 1-3 (2002).

[lxi]Smithfield, North Carolina AG Sign Historic Water Quality Compact—

http://investors.smithfieldfoods.com/releasedetail.cfm?releaseid=302432; Smithfield Agreement—

http://www.cals.ncsu.edu/waste_mgt/smithfield_projects/agreement.pdf.

[lxii]Id.

[lxiii]Moratorium Fails to Quell Growth of N.C. Hog Herds, The Herald-Sun, Oct. 1, 1998 at C5.

[lxiv]Id.

[lxv]Id.

[lxvi]Id.

[lxvii]Id.

[lxviii]N.C. Gen. Stat. § 143-215.101 (2007); See Environmental Defense Fund, 2007 NC Swine Farm Environmental Performance Standards Act 1 (2007) http://www.edf.org/documents/6979_NC_Swine_Performance_Act.pdf.

[lxix]N.C. Gen. Stat. § 143-215.101.

[lxx]Id.

[lxxi]Id.

[lxxii]Nicole Norfleet, NC Swine Farms Not Making Energy From Waste, A.P., July 15, 2010.

[lxxiii]Press Release, N.C. Department of Environment and Natural Resources, Funding Available for Swine Lagoon Conversion Program (June 15, 2010), http://portal.ncdenr.org/c/document_library/get_file?uuid=371ccf84-e414-493a-884a-2f272a605a23&groupId=38358.

[lxxiv]K.J. Williams, Little interest in grants for hog waste lagoon conversion, Star News, April 11, 2010.

[lxxv]Anonymous, Cleaning up the hog farms, The Indep. Weekly, May 26, 2010.

[lxxvi]Lucas v. South Carolina Coastal Council, 505 US 1003 (1992).

[lxxvii]Id. at 1006.

[lxxviii]Id. at 1019.

[lxxix]Id. at 1031.

[lxxx]Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 334 (2002).

[lxxxi]377.

[lxxxii]341-2.

[lxxxiii]342.

[lxxxiv]Penn Central Transportation Corp. v. City of New York, 438 U.S. 104 (1978).

[lxxxv]Id. at 130.

[lxxxvi]Id. at 124.

[lxxxvii]Id. at 136.

[lxxxviii]Id. at 134.

[lxxxix]Id. at 136.

[xc]Id.