Farm Wars

Driving east on Highway 54 from Green Bay towards Lake Michigan, two dominant forces in American land use are on sharp display: suburban sprawl—as evidenced by dozens of newly constructed housing developments—and the rise of large-scale livestock operations, whose manure lagoons and hanger-sized barns are silhouetted on the horizon.

Many commuter families have lived next to small farms for years without complaining of typical inconveniences such as the pungent smell each spring when manure is spread. Indeed, widespread “Right to Farm” laws passed twenty years ago seemed to indicate a permanent truce on these issues. But in the past decade, livestock operations have increased dramatically in size, and Concentrated Animal Feeding Operations (CAFOs) have become the dominant mode of production for American meat and dairy. When a new CAFO with 15,000 hogs, 3,000 cows, or 250,000 hens and a 3.0 acre, 10 million gallon unlined open air manure lagoon is built down the road, neighbors worry their health will be threatened by local air pollution and contaminated drinking water. 

These heated land use conflicts have resulted in everything from a brawl in Western Kentucky to lawsuits asking whether courts should protect residents’ health and safety and prevent “unreasonable interferences” with the quiet enjoyment of their property.

As these battles unfold, even some longtime family farmers in such mixed agriculture and residential areas fear that newcomer suburbanites will put them out of business through “nuisance lawsuits” that attack what they’ve done for generations—store and spread manure on their land.

Growing CAFOs Challenge Right to Farm Laws

In the late-1970s, there was widespread recognition by farmers, urban planners, and politicians that suburban sprawl posed a palpable threat to family farms. One fear was that residential sprawl into agricultural areas could lead to a rash of expensive nuisance lawsuits brought by commuters, unfamiliar with customary farm practices, against family farmers. Farm advocates believed that even though family farmers would likely prevail in such suits, legal expenses would bankrupt them before they secured a favorable court decision. Between 1978 and 1983, at least 40 states passed “Right to Farm” laws designed to limit new suburbanite neighbors’ ability to bring nuisance suits against existing farms. Before long all 50 states had passed such Right to Farm laws to protect family farms.

In passing these laws, state Legislatures around the country followed the 400-year-old common law doctrine (originating in England and brought over to the Colonies) that protects established land uses from encroachment by new land uses. Vermont’s 1981 Right to Farm Act, for example, provided farmers with protection from nuisance suits as long as the farm was established before surrounding suburban activities and did not jeopardize public health and safety. According to Professor Dan Esty of Yale’s Center for Environmental Law and Policy, “the purpose of the first generation of Right to Farm laws was to protect America’s traditional family farms from suburban sprawl.” These early Right to Farm laws did not anticipate nor protect new industrial livestock operations built among established homes and family farms because as Esty puts it, “at that time CAFOs were just a blip on the agricultural horizon.” By the mid-1990s, due largely to the widespread rise of CAFOs, Right to Farm laws no longer effectively mitigated land use conflicts between farming operations and suburban neighbors.

The explosion of new CAFOs in North Carolina illustrates the scale of land use conflict that had emerged. According to a joint report by the Natural Resources Defense Council and the Clean Water Network, between 1991 and 1998 the number of hogs on North Carolina farms nearly tripled to 10 million, thus surpassing the human population of the state. The waste generated, stored, and spread at new hog CAFOs polluted local air and contaminated nearby wells relied on for drinking water by existing suburban neighbors and rural family farmers alike. A study of 1,600 private wells near CAFOs in North Carolina found that an astonishing 34 percent had been contaminated by nitrates, which can lead to increased rates of bladder cancer, non-Hodgkin’s lymphoma, and kidney failure. Citing mounting health concerns over “heavy metals, accelerating antibiotic resistance, pathogens, nitrates, bacterial endotoxins, volatile gases, gastrointestinal disease, and respiratory problems,” the American Public Health Association called for a nationwide moratorium on the establishment of new CAFOs. In addition, excessive runoff and numerous manure lagoon spills resulted in severe pollution of surface waters: when an eight-acre manure lagoon in North Carolina burst through its dam and 25 million gallons of liquid waste surged over a road, across a tobacco field, and into the New River, virtually all aquatic life in a seventeen-mile stretch of the river was killed.

Battling in State Courts & Legislatures

In the 1990s, large agribusiness became increasingly concerned that the original Right to Farm laws passed in the late-1970s and early-1980s did not provide nuisance protection for new CAFOs. Agribusiness lobbies sought and achieved the passage of new “strict” Right to Farm laws, which immunized agricultural operations from nuisance suits regardless of whether or not they predated suburban homes. Legal commentators quickly articulated the harmful effects of such changes. Michigan attorney Steve Laurent noted that “instead of being a shield for the small farmer as originally intended,” strict Right to Farm laws “function more as a sword for the industrial livestock concern against suburbanites and family farmers.” In the face of serious health effects and pollution problems, suburbanites and small farmers have recently challenged these “strict” Right to Farm laws as “unconstitutional takings,” claiming such laws deprive them of the use of their property and thus violate the 5th Amendment to the Constitution.

State courts in Iowa, Michigan, Minnesota, Idaho, and Kansas have supported neighbors’ and small farmers’ legal claims, finding strict Right to Farm laws unconstitutional and invalidating the most constitutionally flagrant provisions. In 1998, for example, the Iowa Supreme Court concluded, “the state cannot regulate property so as to insulate the users from potential private nuisance claims without providing just compensation to persons injured by the nuisance.” The Court reasoned that Iowa’s new strict Right to Farm law exceeded the state’s legislative power “by authorizing the use of property in such a way as to infringe upon the rights of others.”

Recently, bucolic Vermont has emerged as a center of the new Right to Farm debate. In October 2003, Vermont’s Supreme Court ruled that a radically expanded orchard near an existing home was not entitled to “Right to Farm” nuisance immunity under Vermont’s existing 1981 law. The Secretary of Agriculture, Governor, and Farm Bureau feared that this court interpretation of the Right to Farm law exposed all farms in Vermont, large and small, to nuisance lawsuits by new suburban neighbors. 

Competitiveness or Public Health

An effort to rewrite Vermont’s Right to Farm law emerged in the state Legislature, where large farms and the Farm Bureau squared off against neighbors of CAFOs and small and organic farmers who wanted to ensure their right to protect themselves from large farm pollution. The Farm Bureau made its case for a stricter Right to Farm law in testimony to the House Agriculture Committee: “it’s absolutely imperative that farms be allowed to adopt new methods, new hours, and diversify without opening themselves up to the specter of a lawsuit.” The Bureau argued farmers need to grow to survive and that “flatlanders” (city folk from the less mountainous Boston and New York metropolitan areas) who didn’t understand the necessities of farming would put them out of business and destroy their way of life. The testimony claimed that without broader Right to Farm protections, farms would be put under by “a nuisance suit or two, or three, or one per new neighbor until farming is abandoned.”

Large farming operations argued further that without protections, they could not survive out-of-state competition. They explained large dairies in the West, Midwest, and South are 50 to 100 times the size of large dairies in Vermont and that they needed to grow substantially to be able to compete in the national commodity market.

Residential commuters living in predominately rural areas testified they were lovers of agriculture and wanted to ensure farming in Vermont had a bright future. But they still have concerns about the contamination of well-water, as in North Carolina, and the health effects of CAFOs such as those documented by the American Public Health Association. They are also concerned that property values near new CAFOs have been shown to fall by 50 percent, threatening families’ ability to borrow against the value of their homes to put their kids through college. As Patty Britch of Highgate explained, “We need farmers in Vermont; we’ve got to support them, [but the Legislature] cannot give all the rights to farmers… There has to be a balance of rights for farmers and neighboring families.”

Small dairy farmer Fran Bessette lives near the 100,000-hen Vermont Egg Farm CAFO in Highgate, which has applied to expand to 700,000 hens. She points to flies, pesticide drift, and overpowering odors from the neighboring CAFO, and states that “because of all the spraying that was done to keep my neighbors’ fly population down, I developed spots in my lungs, lost 40 lbs, couldn’t work, and was sick for years.”

Protective Legislation but Preventative Policy

In the age of CAFOs, it is apparent that legislation conferring absolute immunity to all agricultural operations will contain the fatal legal flaw of being overbroad: it would protect truly egregious and dangerous operations and also run the risk (à la Iowa) of being struck down as an unconstitutional infringement of neighbors’ property rights. Right to Farm laws are still needed, however, to protect farms from lawsuits over pre-existing and customary farm practices.

The rewrite of Vermont’s Right to Farm law ended up codifying, in effect, the common sense wisdom offered by Fran Bessette: “I don’t think farmers or non-farmers have the right to impose a nuisance on anyone. I don’t care who it is; they should not be able to cause that much harm to someone else.” After five months of debate, in May 2004, the Legislature passed a revised Right to Farm Bill that clearly protects established farm activities from new suburban neighbors as long as there is no “substantial adverse effect on health, safety, or welfare.” In a rare legislative moment it seemed all sides were satisfied with the outcome—the Vermont Farm Bureau, concerned neighbors, small and organic farmers, environmental groups, Legislators, and the Administration all endorsed the final version of the Bill.

Carefully tailored anti-nuisance legislation, however, is not enough to solve all future land use conflicts between CAFOs and suburban and small farm neighbors. Farmers, neighbors, environmental groups, and legislators increasingly recognize that, while Right to Farm laws address some concerns on both sides, the real solution to such conflict is to prevent public health and environmental problems before they occur.

Numerous policy tools have emerged in recent years to do just that. “Siting provisions,” for example, ensure that new CAFOs are built in isolated and less environmentally sensitive areas—thereby helping to reduce human health effects and ecological damage. “Land base requirements,” another example, mandate that all farms, including CAFOs, own, for example, 75 percent of the land needed to spread the manure they generate. The requirement works to ensure CAFOs and family farms don’t get themselves into trouble by growing so fast or large they lack a way to deal with their waste safely. Land base requirements also prevent corporately-owned CAFOs from passing the majority of their waste through “spreading agreements” onto irresponsible third parties.

There has also been a call for state-supported surface and groundwater monitoring, water quality-based farm permits, and greater involvement of public health officials during the permitting of CAFOs. Finally, some policymakers, primarily at the state level, have recently demanded an end to policies that tailor the overwhelming majority of government subsidies, financing, and special programs for CAFOs so that safer small family farms can start to get their fair share of the pie. While ultimately it may not be possible to return to the successful decades of truce that existed before the emergence of CAFOs, a concerted effort by policymakers and advocates on all sides just might prevent the widespread, heated conflicts that have dominated recent years.

REFERENCES

Neil D. Hamilton. “Right-To-Farm Laws Reconsidered: Ten Reasons Why Legislative Efforts to Resolve Agricultural Nuisances May Be Ineffective.” Drake Journal of Agricultural Law. No. 3, 1998. 103.

Steve J. Laurent. “Michigan’s Right to Farm Law: Have Revisions Gone Too Far?” Michigan State University Law Review. No. 213, 2002.

Iowa Supreme Court Case: Bormann v. Bd. of Supervisors. 584 N.W.2d 309. Iowa 1998.

Vermont’s new 2004 Right to Farm law codified at Title 12, Chapter 195 (Nuisance Suits Against Agricultural Activities), §§ 5751-5754.

http://www.leg.state.vt.us/statutes/statutes2.htm

Grace Factory Farm Project

http://www.factoryfarm.org

Natural Resources Defense Council and Clean Water Network. “America’s Animal Factories: How States Fail to Prevent Pollution from Livestock Waste.” 1998.

http://www.nrdc.orgasp