WASHINGTON — Agriculture interests this year have successfully lobbied for a host of new state laws to protect farms from litigation over foul smells, loud noises and declining water quality.
The push comes after years of nuisance lawsuits the agriculture industry blames for decimating some livestock producers. All 50 states already had a “right to farm” on their books, but the new laws will make it even more difficult to bring such lawsuits against farmers.
Some of the laws prohibit all but the nearest neighbors from filing a claim. Others limit the awards that plaintiffs can win, or hold them financially liable for a defendant’s legal fees if their lawsuit is dismissed.
Nebraska, Oklahoma, Utah, West Virginia and Washington enacted laws this year. Lawmakers in Louisiana, Oregon and Vermont introduced legislation that is still under consideration. In Georgia, a House bill died in a Senate committee, but the Georgia Farm Bureau intends to keep lobbying for it ahead of next year’s session.
Much of the action has been spurred by legal activity in North Carolina, home to 9 million hogs and 2,400 swine operations and the pig waste that goes with them. The state’s pork industry has long been criticized for harming the environment, but last year a jury awarded $473.5 million to neighbors of industrial-scale hog farms over “obnoxious, recurrent odors” and other nuisances.
The award was capped at $94 million under a state law limiting punitive claims, but it sent a strong signal to agriculture.
In a column titled “Our Right to Farm,” the American Farm Bureau Federation rallied the troops.
Hog farmers in North Carolina are “under attack,” Zippy Duvall, president of the 100-year-old organization, wrote last August in his “Zipline” column for the organization’s website. He blamed the legal industry rather than residents.
“Money-hungry big-trial lawyers have swooped in pitting neighbor against neighbor with overblown lawsuits,” he wrote. If they’re not stopped, he continued, “there’s nothing standing in the way of them crossing state lines to head straight for each of our farms next.”
Duvall encouraged his “Farm Bureau family” to help usher in a wave of right-to-farm bills that legislatures in at least nine states have considered or enacted this year. The North Carolina cases prompted the Farm Bureau and other agricultural heavyweights to organize. Roughly 500 plaintiffs in 29 cases have sued Smithfield Foods subsidiary Murphy-Brown, alleging swine operations’ open lagoons, used to store hog manure, stink up the area and draw flies.
In one recent ruling, jurors in March held the pork giant liable for $420,000. Four other juries have already awarded nearly $550 million in penalties.
“Let’s show these big-trial lawyers they can’t line their pockets at the expense of our strong rural communities,” Duvall wrote in closing. Neither Duvall nor other officials at the American Farm Bureau were available for an interview for this story.
But critics of the new laws say they pit agriculture operations against their rural neighbors, and that removing landowners’ ability to file legitimate nuisance claims takes away their property rights and gives them to the farming operation.
“The funny thing about all of these laws is that they all protect producers from nuisance liability only in cases where there’s already a nuisance,” said Anthony Schutz, associate professor of law at the University of Nebraska College of Law in Lincoln. “Otherwise, you wouldn’t need a defense.”
The Georgia, Michigan and Utah farm bureaus included right-to-farm laws among their policy priorities. In August, the same month Duvall posted his piece, the Florida Farm Bureau said it was working to strengthen Florida’s right-to-farm law after the challenges in North Carolina. Following a heavy push to amend the law in Nebraska, the state farm bureau called the changes that passed a win for agriculture and the state.
“The negative verdicts have scared family farmers and lawmakers whose states’ livelihoods and fundamental characters depend on agriculture,” Keira Lombardo, Smithfield executive vice president of corporate affairs and compliance, said. “Legislation seems like a commonsense reaction to what many understandably perceive to be a threat to their ability to earn a living and cherished way of life.”
Some laws involve minor changes. Washington state voted to notify residential homebuyers of the act’s relevance to nearby forests. Other laws, such as the one enacted by West Virginia, protect farms from nuisance lawsuits when they expand or adopt new technologies. The West Virginia law also provides a shield against nuisance claims when operations are transferred, diminished or temporarily halted.
Right-to-farm laws are intended to provide an affirmative defense for agricultural operations that face nuisance litigation, so long as certain criteria are met. The defense is based on an old common law called “coming to the nuisance.”
For example, someone who buys a home in the flight path of an airport can’t claim a nuisance, because the homeowner knew about the noise — and probably got a better deal on the home because of it, said Rusty Rumley, senior staff attorney with the National Agricultural Law Center at the University of Arkansas in Fayetteville.
Determining who arrived first is easier in newer states such as Nebraska, but tougher in older states such as Maryland, Rumley said. The answer can depend on who built their home first, whether the agricultural land has been continuously farmed, and whether the home has been passed down to lineal descendants.
In the Smithfield Foods cases in North Carolina, a judge ruled the state’s right-to-farm statute did not apply because the plaintiffs lived on their property before the swine farms were established. The North Carolina legislature amended its right-to-farm statute to protect producers after the first ruling in April 2018. But amendments don’t apply to cases that were already filed.
“U.S. pork producers should focus on their farms and not have to worry about these harmful lawsuits,” Rachel Gantz, communications director for the National Pork Producers Council, said in an email. “We applaud efforts to protect our farmers and will continue to challenge these nuisance suits across the country.”
States began adopting right-to-farm statutes in the late 1970s. The laws were initially touted as a way to preserve farmland and the farm lifestyle in the face of urban sprawl. But critics say they preempt local land use and environmental laws.
Whenever citizens try “to hold industrial hog facilities accountable for their pollution, for reducing the quality of life or impacting the health of those who live nearby, the North Carolina General Assembly has changed the law to narrow the rights of citizen neighbors,” said Chandra Taylor, senior attorney at the Southern Environmental Law Center in Chapel Hill, N.C.
But Rumley argues that most right-to-farm laws provide only moderate protection from lawsuits. He noted that states such as Vermont have especially weak laws that require farms to have arrived first and to have not made any significant changes to their operations to claim a right-to-farm defense.
