Jessica Culpepper: The Problem of Agricultural Exceptionalism
As an attorney with decades of experience in the food systems movement, Jessica Culpepper knows that legal advocacy is a powerful tool in food systems reform. But legal strategy alone is not enough, she warns, and sometimes they can backfire if they are not part of a broader effort by a coalition.
She brings up a painful example from a federal appeals court in North Carolina in 2018. In this case, neighbors of industrial hog farms filed a lawsuit against Smithfield Foods for smells and noise they found unbearable. The jury found in favor of the plaintiffs, and the plaintiffs were awarded money for damages. The jury also fined Smithfield and its owner, the Chinese firm known as WH Group, one of the world’s largest livestock companies, millions of dollars.
“In this case, the plaintiffs had an incredibly powerful lawsuit that won on the merits,” says Culpepper, who is the executive director of FarmSTAND, a legal group dedicated solely to taking on industrial animal agriculture. “But because the case was pursued primarily as a legal strategy rather than as part of a broader, coordinated movement effort, the legislature was able to retaliate and quickly shut the door on future cases like it. It shows how urgently we need to align litigation with movement strategies to protect communities and sustain those wins.”
On the heels of that win for the plaintiffs, the North Carolina legislature passed a “nuisance lawsuit” bill that makes it impossible for neighbors of hog farms to sue companies such as Smithfield and WH Group. Plaintiffs such as Devon Hall and the grassroots organization REACH challenged these bills, but in 2021 a Court of Appeals decided in favor of the legislature. Plaintiffs such as REACH are now no longer able to sue, nor can they recover punitive damages.
“In the Smithfield case, people walked out with money recovery, but nothing changed on the ground,” says Hall. “The state regulatory bodies and state legislature are passing bills to block people from suing the industry.”
But Culpepper offers a more inspiring example of legal tactics working within the movement to effect more durable change. This case of CARE et al. v. Cow Palace LLC dates back to 2015 and is centered in the Yakima Valley in Washington State. The plaintiffs brought suit against a mega-dairy that was responsible for pollution in the valley, and the case is referred to as “precedent-setting” because the federal judge interpreted the Resource Conservation and Recovery Act, or RCRA, to include manure as a solid waste. (RCRA dictates the proper control of hazardous and non-hazardous solid waste.)
In that case, CLF’s founding director Bob Lawrence testified as an expert witness about the health implications of nitrate pollution of drinking water from wells that were contaminated by leachate in the groundwater beneath manure piles. This work was preceded by a 2011 study by CLF senior adviser D’Ann Williams that measured the concentration of airborne pollutants in homes close to dairy operations, including particulate matter and ammonia.
“When we won on RCRA, the industry immediately got the ag commissioner for Yakima elected as a congressman,” says Culpepper. “And he was there for one purpose—to stop RCRA from being used again in this way. But because we were deeply involved in this movement and when the bill was introduced, we already had strong relationships with experts, farmers, and advocacy organizations who rapidly answered the call to write letters and testify. We defeated that bill at great cost. It was thousands of hours of legal work, but it worked well because it was not done in a vacuum.”
She explains that the lawyers at FarmSTAND are not community lawyers, but instead are movement rooted. “We come in with an agenda for systemic change, and we’re transparent about that. But we know our clients and coalition partners are the experts in their lives, their communities, and what their solutions look like. We bring the legal expertise, and together we can build the kind of collective power it takes to win big.” As a movement lawyer, she is deeply in relationship with other organizers, grassroots organizations, and workers, listening to the problems that they see. She is in partnership. “We walk a fine line between advancing our mission for system change with making sure the folks who are most impacted are leading the solutions.”
Culpepper stresses the need to be realistic about what the legal system can deliver. While legal strategies can win reforms, those victories happen within systems fundamentally designed to uphold the status quo, not dismantle it. American economies and systems were established during a time when land theft and labor theft were not only tolerated, but were considered the norm, and as a result, exploitation is baked into the institutions that evolved to maintain the status quo.
“Legal systems are part of the machine, and they keep things humming along,” she says. “Not to get too navel-gazey about it, but our entire system of agriculture is set up in land and labor theft.”
The tenet that continues to prop up the status quo, she says, is agricultural exceptionalism. A 2023 dissertation by Sarah O’Connor Rodman, a CLF-Lerner Fellow, spells it out: “Despite difficult working conditions, agricultural workers in the United States are excluded from many federal-level labor protections. These policy carve-outs, known as agricultural exceptionalism, have created a labor force in agriculture with fewer rights, protections, and benefits than workers in most other industries. Agricultural exceptionalism was originally born from successful efforts of employers to maintain a system of labor exploitation established in times of slavery and sharecropping.”
Culpepper notes that agricultural operations are given leeway with offenses that other industries would be fined or punished for. Non-point source pollution is a good example of this exceptionalism. Whereas a petroleum refinery pollutes water from a specific point source such as a pipe, an industrial ag operation creates pollution from run-off, which is not coming from a specific point. The Clean Water Act, which was created to regulate pollution, often exempts non-point source pollution, giving agriculture a free pass to pollute.
“Things that you could nail a petroleum refinery for, ag gets away with it,” says Culpepper.
She suggests that another way to think about the way our laws work within agriculture is this: We ask ourselves what is the most damage we can tolerate being done by industry. In calculating penalties, the Environmental Protection Agency considers the effect of the penalties on the companies being fined and takes their welfare into account.
For permitting, she says, the question is not, How do we protect the environment? The question is, How can we allow industry to do this with a tolerable amount of damage?
“The Clean Water Act is supposed to hold industry to account,” she says. “We tell them to pollute as much as possible without going out of business. We’re never going to penalize you into going out of business. The laws are designed to allow them to continue operating.”
The current presidential administration has escalated the need to address issues that Culpepper and FarmSTAND typically address. Food system immigrant workers are especially vulnerable.
“You look at the raids,” she says. “ICE has raided strawberry fields, dairies, meatpacking plants, even after Trump told ICE to lay off ag and the hospitality industry.”
The administration is curtailing work program visas, and visa fraud is occurring at a higher rate, especially with J-1 visas, which are supposed to promote cultural exchange. His administration has also recently terminated legal protections for half a million Haitians, many of whom work agricultural jobs, setting them up for potential deportation.
In addition, contracts for farmers are being terminated and funds frozen at an alarming rate. “Local farmers who grow food for schools and pantries, that’s gone, billions of dollars. Climate smart agriculture programs are being terminated,” says Culpepper. “Farmers who’ve already bought equipment now can’t afford to operate and have to close their farms.”
Many of the contract terminations are being done by artificial intelligence that combs contracts for key terms such as “underserved,” “climate,” “equity,” and “clean water.” In some cases, those terminations can be appealed, or contracts can be rewritten and resubmitted, while other contracts are fully, irrevocably cancelled.
“We’re losing a lot of expertise and a lot of wisdom,” she says. “We’re losing a lot of people who are really good at their jobs. An enormous amount of damage has been done.”
Based in North Carolina, Culpepper is still witnessing the state’s recovery from Hurricane Helene, and she refers to what’s happening in policy today as the food systems movement’s Helene. But even though the hurricane has hit, she has hope that the levies will hold. Confident that the Trump Administration will end, she believes the movement should be thinking now about how to rebuild, whenever that moment presents itself. She’s been thinking about laws and regulations that would prevent a single president from dismantling an entire food system.
Is she optimistic?
“It’s hard to feel optimistic right now. But when you look at how little funding and support we get, compared to groups fighting off oil and gas, we’re making great strides. No administration has been great for us, but having clear eyes about that is important,” she says. “Sometimes a court win is going to move something, but the courts won’t save us, and the Clean Water Act won’t shut down a company. If you don’t have a ground game, we just pass the same dumb law again, and we have to fight again. But start telling powerful stories in the media. Call elected officials. Freak out publicly. I have seen that work.”
For more insights and opinions, check out CLF Perspectives on Food Animal Production.
Image: Mike Milli, 2025.