Johnson City Press: Neighbors suing over pig fumes spur 'right-to-farm' push
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Neighbors suing over pig fumes spur 'right-to-farm' push

By April Simpson, Stateline.org • Jun 2, 2019 at 5:00 AM

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," Duvall 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 that 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 this year. Last 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 in an email. "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, North Carolina.

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. However, Vermont lawmakers are considering waiving some of those requirements.

Under West Virginia's new law, plaintiffs in unsuccessful suits must pay the defendant's attorney fees. At least 16 other states have similar provisions, which can discourage homeowners from risking litigation, according to a study of U.S. right-to-farm laws in the April 2019 Journal of Rural Studies. West Virginia also has joined Kansas, Missouri, North Carolina and Virginia in capping the punitive damages plaintiffs may claim.

"The most damages you can be awarded is the reduction in the property value of your home, regardless of any other damages you've actually suffered," said Kara Shannon, senior manager of the Society for the Prevention of Cruelty to Animals Farm Animal Welfare Campaign. "That's going to stop people from bringing (lawsuits) at all."

Nebraska state Sen. Dan Hughes, a Republican, disagrees that the right-to-farm bill he ushered through the state's unicameral legislature pits agriculture operations against their rural neighbors. The first-in-time principle still holds, he said. Nebraska counties have strict zoning laws, which adds another layer of protection for all parties. Agriculture is the top industry in Nebraska, historically known as the Beef State. It's also among the top 10 states in hog and pig inventory.

Still, critics suggest the law is unnecessary in a small-population state that doesn't allow punitive damages and rarely sees a nuisance suit brought against agriculture producers. Farmland dominates sparsely populated Nebraska, aside from two metropolitan areas in the eastern half of the state. Unlike North Carolina, people typically don't live near large spray fields, according to Schutz, the University of Nebraska law professor.

"To take that example and bring it to Nebraska and try to justify legislation is just a testament to what's really going on here," Schutz said.

He added, "It's all driven by those large verdicts in North Carolina, and the national Farm Bureau's efforts at expanding that out to a problem that didn't need a solution on the national scale, and at the end of the day, gives them something to talk about."

The American Farm Bureau Federation says it broadly supports right-to-farm laws but has not lobbied for specific bills.

Hughes admits nuisance lawsuits haven't been a problem for Nebraska's agriculture producers — yet. The Nebraska Farm Bureau and Nebraska Cattlemen brought the idea to him, to avoid the suits and damages that have resulted in North Carolina, Hughes said.

"We wanted to address the issue before it was a problem," Hughes said.

People didn't realize that Nebraska's old right-to-farm law only granted protection if the farm operation never expanded, said Ansley Mick, director of the Nebraska Farm Bureau-PAC and state governmental relations. "Once you make any change to your operation, that nuisance protection or right-to-farm protection is lost," Mick said. "That was a big deal to us."

In addition, the fear of litigation discouraged producers from expanding or making changes to their operation, said Jessie Herrmann, director of legal and regulatory affairs for Nebraska Cattlemen.

"It's your land and you should be able to make the necessary changes you want to make without the fear of litigation," Herrmann said.

The Nebraska bill, which Republican Gov. Pete Ricketts signed earlier this month, requires complainants to file nuisance suits within two years of the time the nuisance began. Johnathan Hladik, policy director at the Center for Rural Affairs in Lyons, Nebraska, said two years is a reasonable window to file a suit.

"In the Midwest, we have strong community values and we give our neighbor the benefit of the doubt every single time," Hladik said. "It's hard to know in practice what the two years are going to look like. Let's say that nuisance kicks in. Are you going to run to your neighbor to complain? Probably not."

Initially, Hughes' bill would have adopted tighter protections, including abandoning the first-in-time principle and thereby protecting newer agriculture operations. Over time, the bill was weakened. Early opponents like Hladik agree the outcome is a "good compromise." But does this bill go far enough to protect farmers?

"Ask me in five years," Hughes said. "We'll know once it's tested in court."

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