by Leah Douglas | April 12, 2019
Every state has a “right-to-farm” law on the books to protect farmers from being sued by their neighbors for the routine smells and noise created by farming operations. But this year, the agriculture industry has been pushing in several states to amend those laws so that they will effectively prevent neighbors from suing farms at all — even massive industrial livestock operations.
The push is a response to the millions of dollars awarded so far to five groups of farm neighbors in North Carolina who sued a subsidiary of Smithfield Foods, the biggest pork company in the country, over air pollution –including the manure particles and intense odors put out by large hog operations. The first of 26 lawsuits against the company, representing nearly 500 plaintiffs, was heard in 2017.
In the past several months, legislators in Utah, Nebraska, Georgia, North Carolina, West Virginia, and Oklahoma have proposed, and in some cases passed, legislation that they say will protect farmers against similar lawsuits. The legislation varies, but several proposals reduce the potential damages that plaintiffs could win in such a suit or limit the distance from the farm a neighbor must live in order to bring a suit. Some do both.
Critics say that these changes to existing right-to-farm laws aren’t necessary to protect farmers. “Our law is already extremely strong [in Georgia]. They’re trying to find a solution to a problem that doesn’t exist,” says April Lipscomb, a staff attorney with the Atlanta office of the Southern Environmental Law Center. “Nuisance lawsuits have not been prevalent in the state.”
The agriculture industry is framing these bills as a necessary response to the threat farmers face from nuisance lawsuits, such as those brought in North Carolina, where since last spring, juries in five cases have awarded plaintiffs in Duplin, Bladen, Pender, and Sampson counties more than $574 million in their lawsuits against pork company Murphy Brown, a subsidiary of Smithfield. The plaintiffs alleged that the company’s mismanagement of hog waste degraded their quality of life and reduced their property values. (The plaintiffs’ awards have been reduced to comply with a North Carolina law capping punitive damages.)
Farm lobby groups say they must fend off similar outcomes in other states. And state farm bureaus and industry lobby groups have been clear that the North Carolina lawsuits are the impetus behind the expanded right-to-farm proposals.
For instance, the Utah Farm Bureau wrote in a blog post that the state’s right-to-farm law should be tightened given that “in recent years, some have quickly turned to lawsuits to settle realities of production agriculture.” The Georgia Farm Bureau and the Nebraska Farm Bureau also wrote in support of the right-to-farm bills in those states and linked their proposals to the successful North Carolina lawsuits.
And in at least three states, right-to-farm expansions have already passed. West Virginia’s governor signed that state’s right-to-farm bill into law on March 27. The state senator who sponsored the legislation was clear that nuisance lawsuits “in other states” were what motivated him to bring the bill.
Oklahoma’s governor signed that state’s right-to-farm expansion into law on April 1. The bill’s sponsor explicitly linked the bill to the North Carolina verdicts. Oklahomans defeated a ballot initiative to expand the state’s right-to-farm law in 2016.
North Carolina also changed its law soon after the first cases against Smithfield went to a jury. In 2017 and 2018, the legislature twice overrode the governor’s veto to pass laws that capped the damages plaintiffs can receive from a nuisance suit and restricted the conditions in which a plaintiff can bring such a suit.
Those two laws fit the profile of right-to-farm bills that have been proposed in other states. In West Virginia, the new right-to-farm law restricts who can bring a nuisance suit to residents living within a half-mile of the farm — despite the fact that the effects of air and water pollution from large-scale farms are evident in a much wider radius. Utah’s bill similarly restricts potential plaintiffs to a half-mile radius, while Georgia’s bill limits them to a five-mile radius.
And some of the bills cap plaintiffs’ potential damages as well. The West Virginia law prohibits punitive damages altogether, restricting damages to compensation for diminished property value. This change is yet another callback to the North Carolina verdicts: The major damages awarded to the plaintiffs in the North Carolina cases were punitive.
Restricting or eliminating punitive damages can make it more difficult for plaintiffs to bring nuisance lawsuits, given that damages awarded may not even cover their legal fees. In one North Carolina verdict, compensatory damages awarded to plaintiffs totaled less than $13,000 per plaintiff. Critics say that eliminating punitive damages is a particular concern in the case of farm nuisance lawsuits, given that those affected by the environmental fallout from large-scale animal farming are disproportionately low-income people of color.
The outcome of North Carolina’s changes to its right-to-farm law will be to “deprive affected neighbors of a meaningful legal recourse” when faced with the odors and pollution associated with large-scale animal farming, says Will Hendrick, a staff attorney at the Waterkeeper Alliance who is based in North Carolina. The ability to bring nuisance lawsuits was “a protection afforded under common law, it was a protection that predated our statehood, and it was a protection pursued effectively,” Hendrick says. “That same measure of justice will, as a result of this recent legislation, no longer be available to similarly situated North Carolinians.”
These right-to-farm expansions could also be difficult to challenge, says Robert Hensley, legal advocacy senior counsel at the American Society for the Prevention of Cruelty to Animals (ASPCA). “The remedy is probably in the legislature, which is the same place that’s passing these laws,” he says.
When asked why the industry is taking such an aggressive approach in so many states on right-to-farm this year, Kara Shannon, manager of farm animal welfare campaigns at the ASPCA, says that more rural communities are speaking out about the environmental and quality-of-life problems related to large-scale animal agriculture.
“Across the country, we’re seeing more rural communities — the people who are actually living next to these CAFOs — really starting to organize,” she says. In some cases, those communities are “pass[ing] local ordinances and permitting and trying to get a handle on how this waste is being managed, or what the process looks like to build a new CAFO.”
Rural communities have had several high-profile victories against new industrial farms in recent years, including the efforts of several Kansas communities to stop construction of a Tyson poultry processing plant in the state. Nebraska residents have repeatedly challenged the introduction of large-scale poultry farming in that state that was brought about by Costco’s new plant there.
Neighbors of large-scale animal farms, which can house tens of thousands of animals, often complain of odors so powerful they can’t use their property, polluted well water, and asthma. The agriculture industry, meanwhile, has pushed for state and federal deregulation of air emissions from such farms. In some states, runoff from farm manure is subject to only limited oversight.
This story comes to us from the Food & Environment Reporting Network, an independent, nonprofit investigative news organization, where Leah Douglas is an associate editor and staff writer. A version of the story first appeared in FERN’s Ag Insider.