92022 ENVIRONMENTAL LAW REPORTER 52 ELR 10727
AGRICULTURAL EXCEPTIONALISM,
ENVIRONMENTAL INJUSTICE, AND
U.S. RIGHTTOFARM LAWS
by Danielle Diamond, Loka Ashwood, Allen Franco,
Lindsay Kuehn, Aimee Imlay, and Crystal Boutwell
Danielle Diamond is a visiting fellow with the Brooks McCormick Jr. Animal Law & Policy Program
at Harvard Law School. Loka Ashwood is an associate professor in the Department of Sociology at
the University of Kentucky. Allen Franco has a J.D. and an LL.M. in agriculture and food law from the
University of Arkansas, and is an assistant federal public defender with the Arkansas Capital Habeas
Unit. Lindsay Kuehn is a former pig farmer, now a staff attorney with the Farmers’ Legal Action Group.
Aimee Imlay is a sociology Ph.D. candidate at the University of Kentucky. Crystal Boutwell has a
master’s degree in rural sociology and a bachelor’s degree in natural resources management.
I
ndustrialized agriculture and its contribution to cli-
mate change and a host of other environmental and
public health problems have received more attention
in recent years. Many such accounts consider the law a
regulatory tool that counters environmental injustice—for
example, through the Clean Air Act (CAA)
1
and the Clean
Water Act (CWA).
2
Less focus has been a orded to how
the law enables environmental injustices through statutory
mandates that enable the most egregious industrial prac-
tices. While rural scholars and environmental policy advo-
1. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.
2. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.
cates have increasingly recognized industrial agriculture
as a central agent of rural environmental injustice,
3
few
have considered how laws shape environmental injustices
in rural areas.
4
is may be because laws and policies are
often seen as solutions to, rather than potential drivers of,
environmental injustices.
5
Right-to-farm laws (RTFLs) exist at the interface of regu-
lation, common law, and corporate power, with remarkable
but underrecognized consequences for rural environmental
justice. Legislatures passed RTFLs with the stated intent of
protecting farmland and agriculture by limiting nuisance
suits against agricultural operations.
3. See Kaitlin Kelly-Reif & Steve Wing, Urban-Rural Exploitation: An Under-
appreciated Dimension of Environmental Injustice, 47 J. R S. 350
(2016); E. Paul Durrenberger & Kendall M. u, e Expansion of Large-
Scale Hog Farming in Iowa: e Applicability of Goldschmidt’s Findings Fifty
Years Later, 55 H. O. 409 (1996); Kelley J. Donham et al., Commu-
nity Health and Socioeconomic Issues Surrounding Concentrated Animal Feed-
ing Operations, 115 E’ H P. 317 (2007).
4. Kelly-Reif & Wing, supra note 3.
5. See, e.g., J L H, P D P
E J (2011).
Authors’ Note: The authors wish to thank the Brooks Mc-
Cormick Jr. Animal Law & Policy Program at Harvard Law
School for hosting the lead author (Danielle Diamond)
while completing this Article. Acknowledgment must also
be given to the many partners, farmers, and rural residents
who provided the inspiration for this Article. A portion of
the research was funded by the U.S. Department of Agri-
culture’s National Institute of Food and Agriculture (Grant
No. 2018-68006-36699) with co-investigator the Farm-
ers’ Legal Action Group.
S U M M A R Y
SUMMARY
While the environmental justice movement has gained traction in the United States, the relationship between
agri-food systems and environmental injustices in rural areas has yet to come into focus. This Article explores
the relationship between U.S. agricultural exceptionalism and rural environmental justice through examining
right-to-farm laws. It demonstrates that the justifi cation for these statutes, protecting farmers from nuisance
suits, in practice transfers power from rural communities to industrial agriculture by safeguarding agribusi-
ness interests and certain types of production from lawsuits and liability. It considers how the original impetus
behind agricultural exceptionalism—to safeguard the food system through distributed and vibrant farms—
can be reconciled with environmental justice by repealing right-to-farm laws.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
52 ELR 10728 ENVIRONMENTAL LAW REPORTER 92022
Building on prior research,
6
this Article analyzes the
history of RTFLs and details how these laws have played
out in the courts. e Article also considers how agricul-
tural exceptionalism creates environmental injustices by
providing the impetus for repealing common-law private-
property rights and permitting agriculture operations to
operate outside environmental regulations. Our research
demonstrates that RTFLs have tipped the balance of jus-
tice between competing property interests in favor of envi-
ronmental degradation, by imposing one-sided protections
for large-scale industrial polluters—demonstrating a fail-
ure of RTFLs to serve their fundamental purpose.
I. Background
Historically, common-law nuisance actions provided an
avenue for rural landowners to defend their land, liveli-
hoods, health, quality of life, and the environment from
neighboring incompatible land uses.
7
However, in response
to concerns over suburban expansion into farmland areas
in the 1970s and 1980s,
8
state legislatures adopted the
political narrative that nuisance lawsuits brought by sub-
urban transplants posed a threat to agricultural resources.
9
Every state has enacted some form of an RTFL—thereby
solidifying the policy judgment that the social bene ts of
retaining agricultural land and protecting farming were so
great that “the balance between agriculture and other uses
should always be tipped toward agriculture.”
10
e notion that farm life and food production require
special protections is often referred to as “agricultural
exceptionalism,” and traces its origins back to Je ersonian
notions of a well-distributed and agrarian food system.
Based on this belief, farming and agriculture have his-
torically been a orded special protections and exemptions
from laws and regulations.
11
Indeed, agricultural excep-
tionalism has been infused into the national consciousness
since the early periods of Euro-American history, where
the welfare of agriculture was seen as “synonymous with
6. Loka Ashwood et al., Property Rights and Rural Justice: A Study of U.S. Right-
to-Farm Laws, 67 J. R S. 120 (2019).
7. Some say one of the rst environmental cases was an English common-law
nuisance case from the 1600s, when an action was brought by a property
owner against a neighboring hog sty. William Aldred Case (1611) 77 Eng.
Rep. 816, cited in H. Marlow Green, Common Law, Property Rights, and
the Environment: A Comparative Analysis of Historical Developments in the
United States and England and a Model for the Future, 30 C I’ L.J.
541 (1997).
8. By the 1970s, the United States was experiencing not only an acceleration of
suburban migration, but also the suburban encroachment onto land tradi-
tionally used for farming. Nearly 40% of the homes built between 1970 and
1979 were erected on large lots in rural areas. See N A
L S: F R 35, at 4 (1981).
9. See Jacqueline P. Hand, Right-to-Farm Laws: Breaking New Ground in the
Preservation of Farmland, 45 U. P. L. R. 289, 291 (1984).
10. Id.
11. Charlotte E. Blattner & Odile Ammann, Agricultural Exceptionalism and
Industrial Animal Food Production: Exploring the Human Rights Nexus, 15 J.
F L. P’ 92, 102 (2020) (noting that agricultural exceptionalism
removes farming “from the purview of the public, including in the areas of
environmental law, animal law, and property law ... trade law, employment
law, and many other areas”).
national well-being.”
12
Consequently, this resulted in sig-
ni cant government-sanctioned nancial bene ts and legal
protection for the agriculture sector,
13
which now receives
public entitlements to promote its economic standing
through various institutions.
14
Agricultural exceptionalism, while notable in its origi-
nal distributive tendencies, also derives from colonial set-
tlements that dispossessed indigenous people. ese old
patterns of white agrarianism carry over today into spe-
cial agricultural exemptions for large, corporate farms that
impose structural racism through the disenfranchisement
of farm laborers.
15
ere is a network of exceptions “from
social, labor, health, and safety legislation [that have] ...
reinforced agriculture’s unique status in law and society.”
erefore, agricultural exceptionalism has legitimized the
special treatment of the farm sector consecutively with the
inequitable and unequal treatment of farmworkers.
16
e U.S. government has played a crucial role in the
industrialization and corporatization of agriculture. Fed-
eral farm policy opened up access to new sources of credit
for farming operations, incentivized mass production
and e ciency, and generally ushered in the “Get Big or
Get Out!” era in farming. is movement allowed pow-
erful business corporations to accumulate capital and
resources, including land rights and food security, for the
bene t of a select few, while compromising the ability of
others to achieve the same.
17
A national farm crisis in the
1980s further perpetuated the loss of small to medium
sized farms as interest rates soared and commodity prices
collapsed.
18
is movement allowed for more vertical inte-
gration in the food and agriculture sectors and led to more
concentrated and intensive agricultural production.
19
e
development of RTFL protections coincided with this
increased market consolidation and intensi ed industrial
agriculture production.
20
12. See Guadalupe T. Luna, An In nite Distance?: Agricultural Exceptionalism
and Agricultural Labor, 1 U. P. J. L. E. L. 487, 490 (1998).
13. See id. (citing Jim Chen, e American Ideology, 48 V. L. R. 809, 818
(1995)).
14. Id. In this context, special exemptions have imposed a form of structural
racism on farm laborers.
15. Id.
16. See id. at 489 (citing E G, M L: T
M B S 106 (1964) (“[e]xemptions from federal leg-
islation provided to the agricultural sector comprise the doctrine of ag-
ricultural exceptionalism”); also referring to Carey McWilliams’ “Great
Exception” model, wherein agribusiness is exempt from “the basic tenets
of free enterprise”).
17. Philip McMichael, Peasant Prospects in the Neoliberal Age, 11 N P.
E. 407 (2006) (“It is this neoliberal trajectory of global capital accumu-
lation ... [t]he corporate food regime, which deepens the use, misuse and
abandonment of natural and social resources....”).
18. Garret Graddy-Lovelace, U.S. Farm Policy as Fraught Populism: Tracing the
Scalar Tensions of Nationalist Agricultural Governance, 109 A A.
A’ G 395 (2019); see also Martin B. King, Interpreting the
Consequences of Midwestern Agricultural Industrialization, 34 J. E. I-
425 (2000).
19. Jennifer Clapp & S. Ryan Isakson, Risky Returns: e Implications of Fi-
nancialization in the Food System, 49 D. C 437 (2018); see also
Sarah J. Martin & Jennifer Clapp, Finance for Agriculture or Agriculture for
Finance?, 15 J. A C 549 (2015).
20. Industrial agriculture is often characterized by large-scale operations with
unclear ownership and labor structures that utilize capital-intensive fossil
fuel-based technology in place of people and o -site corporate involvement
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
92022 ENVIRONMENTAL LAW REPORTER 52 ELR 10729
In the wake of the North American Free Trade Agree-
ment, the market advantage for pro t accumulation in
fewer and more transnational hands led to the decline
of other types of industrial manufacturing jobs in the
1990s.
21
At the same time, with the advent of the Internet
in 1990, 200 million people in 184 countries worldwide
recognized Earth Day.
22
In 1994, President Bill Clin-
ton issued an Executive Order directing federal actions
to address environmental justice in minority and low-
income populations.
23
is spurred a series of state and
federal regulations and policy initiatives, based on the rec-
ognition that low-income and communities of color bear
a disproportionate burden of environmental pollution and
associated health e ects.
24
Behind the smokescreen of U.S. agricultural excep-
tionalism, rural areas have increasingly been subjected to
“distributive injustices.”
25
Over time, public decisionmak-
ers have “traded rural welfare for some perceived collective
bene t.”
26
Social space—notably rural areas—are only now
beginning to receive scholarly recognition as an explicit
dimension of environmental injustice.
27
However, the gov-
ernment has made no such acknowledgment. For exam-
ple, the Code of Federal Regulations requires that nuclear
power plants only be sited in rural areas, in e ect enforc-
ing the utilitarian principle that the fewest must bear the
riskiest and most hazardous industries.
28
e same ideology
shapes federal regulations and agencies’ cost-bene t analy-
ses, wherein treating the rural equal to the urban rarely
happens because—under such logic—the costs outweigh
the bene ts.
29
driven by pro t interests. Production, distribution, and marketing systems
are vertically integrated into specialized business ventures controlled by a
few key players, like large corporate entities such as Smith eld, Tyson, and
Cargill. John M. Morrison, e Poultry Industry: A View of the Swine Indus-
try’s Future?, in P, P, R C 145 (Kendall M.
u & E. Paul Durrenberger eds., State Univ. of New York Press 1998).
21. Id.
22. Id. See National Archives—Richard Nixon Presidential Library and Mu-
seum, Earth Day, https://www.nixonlibrary.gov/news/earth-day (last visited
July 8, 2022).
23. See Exec. Order No. 12898, Federal Actions to Address Environmental Jus-
tice in Minority Populations and Low-Income Populations, 59 Fed. Reg.
7629 (Feb. 16, 1994), available at https://www.archives.gov/ les/federal-
register/executive-orders/pdf/12898.pdf.
24. J L H, F I O: T F E-
J W G A (2019).
25. Ann M. Eisenberg, Distributive Justice and Rural America, 61 B.C. L. R.
189, 195 (2020), available at https://lawdigitalcommons.bc.edu/cgi/view-
content.cgi?article=3816&context=bclr.
26. Id.
27. Loka Ashwood & Kate MacTavish, Tyranny of the Majority and Rural Envi-
ronmental Injustice, 47 J. R S. 271 (2016).
28. Another example that shows how rural areas are left out of federal environ-
mental regulation is the Safe Drinking Water Act of 1974 (SDWA), Pub.
L. No. 93-523, 88 Stat. 1660 (codi ed at 42 U.S.C. §§300f to 300j-26).
is is the primary federal law that regulates groundwater and drinking
water pollution. e Act generally only applies to community water sup-
plies or “public water systems,” which leaves sparsely populated rural areas
where many farmers and residents rely on private water wells unprotected.
e SDWA de nes “public water system” generally to mean “a system for
the provision to the public of water for human consumption through pipes
or other constructed conveyances, if such system has at least fteen service
connections or regularly serves at least twenty- ve individuals.” 42 U.S.C.
§300f(4)(A).
29. See Eisenberg, supra note 25.
Industrial livestock production facilities, often referred
to as concentrated animal feeding operations (CAFOs),
30
emblematize some of the most egregious outcomes of
industrial agriculture. CAFOs can con ne thousands and
sometimes millions of animals within buildings or enclosed
feedlots. e amount of waste produced at one site often
exceeds most small cities in the United States. Animals
raised for industrialized production are not a orded large
enough parcels of land to absorb waste, as would those
raised on smaller and diversi ed pasture-based farms.
31
Instead, the vast amounts of concentrated pollutants pro-
duced are often amassed in “lagoons” or waste pits, which
pose groundwater and surface water contamination risks
through leakage, runo , and so on.
Indeed, CAFO waste contains concentrated levels of
nutrients, such as nitrogen and phosphorus, and heavy
metals, pathogens, hormones, antibiotics, and ammonia,
among other pollutants.
32
Moreover, massive volumes of
urine and manure, often liqui ed for easier handling, pro-
duce gaseous pollutants such as ammonia, methane, and
hydrogen sul de, among others.
33
Air and water pollutants
also inevitably escape the boundaries of the facilities, which
leads to various environmental problems and impacts the
quality of life for people living nearby.
34
CAFOs have long been known to be one of the leading
sources of surface water pollution in the United States, and
to emit greenhouse gases that signi cantly contribute to
climate change.
35
Consistent with the ideals of agricultural
exceptionalism, CAFOs have largely escaped regulatory
30. e term “concentrated animal feeding operation,” or CAFO, rst ap-
peared in the original federal CWA of 1972 under the de nition of a “point
source.” e CWA speci cally de nes the term “point source” to include
CAFOs (33 U.S.C. §1362(14)).
31. Animal feeding operations (AFOs) are agricultural operations where ani-
mals are kept and raised in con ned situations. An “AFO” is de ned by the
U.S. Environmental Protection Agency (EPA) as
a lot or facility (other than an aquatic animal production facility)
where the following conditions are met: animals have been, are, or
will be stabled or con ned and fed or maintained for a total of 45
days or more in any 12-month period, and crops, vegetation, for-
age growth, or post-harvest residues are not sustained in the normal
growing season over any portion of the lot or facility.
See regulatory de nition at U.S. EPA, Animal Feeding Operations (AFOs),
https://www.epa.gov/npdes/animal-feeding-operations-afos (last updated
July 5, 2022). To be de ned as a “CAFO,” an AFO must meet a certain size
threshold depending on the type of animal con ned and/or the characteris-
tics of its waste treatment facilities.
32. U.S. EPA, E I A F O
(1998).
33. C H, N A L B H,
U C A F O
T I C (2010), https://www.cdc.gov/nceh/ehs/
docs/understanding_cafos_nalboh.pdf.
34. Id. See also Susan Bullers, Environmental Stressors, Perceived Control, and
Health: e Case of Residents Near Large-Scale Hog Farms in Eastern North
Carolina, 33 H. E 1 (2005); Susan S. Schi man et al., e E ect
of Environmental Odors Emanating From Commercial Swine Operations on
the Mood of Nearby Residents, 37 B R. B. 369 (1995).
35. See U.S. G A O (GAO), C
A F O: EPA N M I
C D S P A W Q F
P C (2008) (GAO-08-944), http://www.gao.gov/
new.items/d08944.pdf [hereinafter GAO R]; see also U.S. EPA, I-
U.S. G G E S: 1990-2007
(2009), https://www.epa.gov/sites/default/ les/2015-12/documents/ghg
2007entire_report-508.pdf.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
52 ELR 10730 ENVIRONMENTAL LAW REPORTER 92022
oversight typical of other industries, despite their well-doc-
umented negative impact on the environment.
36
e health
implications of CAFOs are also signi cant. e con ne-
ment of large numbers of animals in such inhumane and
unnatural conditions creates risks for both the animals and
the humans who work inside and live nearby.
37
Indeed, epidemiological concerns reach far beyond the
boundaries of CAFO sites and the communities that sur-
round them. CAFOs present unique opportunities for
cross-species transmission of in uenza.
38
Respiratory virus
outbreaks, not unlike the COVID pandemic, can spread
rapidly among both animal and human populations. e
industry is also known for the overuse of antibiotics, which
are needed to keep animals alive in con ned conditions,
leading to antibiotic resistance.
39
In 2019, the American
Public Health Association called for a moratorium on
new and expanding CAFOs due to the overwhelming
evidence of the harms they cause and the lack of proper
regulation.
40
It is well-documented that CAFOs negatively
impact a farmer’s sovereignty, pose public health risks, pro-
mote inhumane treatment of animals, perpetuate environ-
mental injustices, and cause an overall loss of democratic
self-governance.
41
In the sections that follow, we identify how RTFLs
enable these outcomes and consider how a more distrib-
uted agricultural system provides promise for correcting
this rural wrong.
II. Right-to-Farm Laws
RTFLs exist at the nexus of the rapid expansion of large-
scale, industrialized agriculture and the decline of a more
distributed agricultural system. By 1982, an initial wave
of RTFLs covered most of the United States. At that time,
there were 2.24 million farms spanning over 987 million
36. See GAO R, supra note 35; see also American Public Health Associa-
tion, Policy No. 20194, Precautionary Moratorium on New and Expand-
ing Concentrated Animal Feeding Operations (Nov. 5, 2019), https://
www.apha.org/policies-and-advocacy/public-health-policy-statements/
policy-database/2020/01/13/precautionary-moratorium-on-new-and-
expanding-concentrated-animal-feeding-operations; see also B F. K
., J H C L F, I F
A P A: E I P
C’ P R (2013), https://clf.jhsph.edu/
sites/default/ les/2019-05/industrial-food-animal-productionin-america.
pdf.
37. See K ., supra note 36.
38. See, e.g., omas C. Moore et al., CAFOs, Novel In uenza, and the Need
for One Health Approaches, 13 O H 100246 (2021), available at
https://www.sciencedirect.com/science/article/pii/S2352771421000367.
39. Mary J. Gilchrist et al., e Potential Role of Concentrated Animal Feeding
Operations in Infectious Disease Epidemics and Antibiotic Resistance, 115
E’ H P. 313 (2007).
40. American Public Health Association, supra note 36.
41. See P, P, R C, supra note 20; Douglas A.
Constance & Alessandro Bonanno, CAFO Controversy in the Texas Pan-
handle Region: e Environmental Crisis of Hog Production, 21 C
A. 14 (1999); Andrew D. McEachran et al., Antibiotics, Bacteria, and
Antibiotic Resistance Genes: Aerial Transport From Cattle Feed Yards Via Par-
ticulate Matter, 123 E’ H P. 337 (2015); P C
I F A P, P M T:
I F A P A (2008), https://www.
pewtrusts.org/-/media/legacy/uploadedfiles/phg/content_level_pages/
reports/pcifap nalpdf.pdf.
acres.
42
Since then, the number of farms has declined by
nearly 10%, and almost 100 million acres of farmland have
been lost.
43
RTFLs purport to protect agricultural operations
against nuisance lawsuits brought by those who estab-
lish residences in traditional farming areas, which often
allege pollution problems, odor, or other annoyances. To
receive RTFL protections, most states require agricul-
tural operations to be of commercial scale, meaning they
must sell products or goods for the commercial market.
44
RTFLs also commonly protect di erent types of agricul-
tural activities, but do not provide any speci c protection
for the farmland itself. Commonly, protected activities
include the production of various crops or livestock, as
well as processing, storage, and chemical application. No
state’s RTFL is speci cally tailored to protect traditional
or family-owned farms.
In a traditional common-law nuisance lawsuit, a suc-
cessful plainti may be entitled to monetary damages,
the nuisance-causing defendant may be ordered to alter
or abate the nuisance, or both.
45
However, an alleged nui-
sance-causing party often has a defense in nuisance law-
suits, known as “coming to the nuisance.” e “coming to
the nuisance” defense holds that “if people move to an area
they know is not suited for their intended use, they cannot
argue the preexisting uses are nuisances.”
46
In essence, the
“coming to the nuisance” doctrine is grounded in equity
and prioritizes the party that rst made use of the land.
47
“ is means courts had the power to reconcile disputes
fairly without being bound to statutory mandates or strict
rules of construction.”
48
us, even before the enactment of
RTFLs, existing agricultural land uses were protected from
42. N A S S, U.S. D
A, T 1. H H: 2012 E
C Y (2014), https://agcensus.library.cornell.edu/wp-content/
uploads/2012-New_York-st36_1_001_001.pdf [hereinafter 2012
E C Y].
43. N A S S, U.S. D A-
, T 1. H H: 2017 E C
Y (2017), https://www.nass.usda.gov/Publications/AgCensus/2017/
Full_Report/Volume_1,_Chapter_1_US/st99_1_0001_0001.pdf [herein-
after 2017 E C Y].
44. See, e.g., N.J. R. S. §4:1C-7 (2022); M. R. S. tit. 7, §152(5)
(2022); N. R. S. §2-4402 (2022).
45. See Margaret R. Grossman & omas Fischer, Protecting the Right to Farm:
Statutory Limits on Nuisance Actions Against the Farmer, 1983 W. L. R.
95, 104 (1983).
46. N D. H, A L P’ L G N,
L U C, E L 18 (1992).
47. “ e term ‘equitable’ is de ned as just or consistent with principles of justice
and right, whereas ‘inequitable’ is de ned as not fair.” 27A A. J. 2
Equity §1 (citing B’ L D (14th ed. 2014)). Further:
Equity’s purpose is to promote and achieve justice and to do so
with some degree of exibility. Consequently, the powers of a court
sitting in equity are less hampered by technical di culties than a
court of law because a court of equity, being a court of conscience,
should not be shackled by rigid rules of procedure that preclude
justice being administered according to good conscience.
Id. §2.
48. In essence, a court in equity is a “court of conscience,” meaning it has a
degree of exibility in how it achieves justice. Id.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
92022 ENVIRONMENTAL LAW REPORTER 52 ELR 10731
nuisance suits brought by newly encroaching suburban
developments or other kinds of incompatible land uses.
49
On a national scale, there has been an incomplete
understanding of who or what bene ts from RTFLs and
how they vary among states. Because of this, we formed an
interdisciplinary team consisting of practicing lawyers and
social scientists to study the implications of RTFLs across
the United States. Over three years, we compiled all origi-
nal and current state RTFLs nationally and their legislative
preambles. We researched case law and collected all pub-
lished court opinions invoking RTFLs from all 50 states.
We did this via keyword searches through both Westlaw
and LexisNexis to identify case law where a state’s speci c
RTFL statute was cited.
We then used NVivo software to code the statutes and
cases, importing the original and the most recent versions
of the statutes, as well as the most recent court rulings for
each case. We also looked at each statute’s legislative his-
tory to determine how each state’s RTFL had changed over
time. We then created static sets and ran matrix queries
to identify trends, paying attention to attributes, including
key legislative provisions and the types of parties involved
in the cases (i.e., landowner, resident, CAFO, business
entity, etc.).
While comprehensive and current through the end of
calendar year 2021, our quantitative research is limited to
court opinions accessible through Lexis and Westlaw. In
this Article, we present statistical trends from cases where
a state’s RTFL was dispositive on an issue presented in
the case. All of these cases take place in state intermediate
appellate, state highest, federal district, and federal appel-
late courts, except for two heard by the Illinois Pollution
Control Board.
In addition to identifying quantitative trends, we also
completed in-depth qualitative analyses of each state. We
looked at each state’s RTFL, its legislative history, includ-
ing the dates and content of any amendments, and so on,
as well as how the courts have interpreted and applied
each state’s RTFL and speci c provisions thereof. In addi-
tion, we searched for secondary sources of information,
such as news articles and the like, to develop a greater
understanding of any public debates or opinions regard-
ing RTFL issues.
We then summarized each state’s law and any signi cant
cases pertaining to it. ese summaries are currently avail-
able online on the One Rural website.
50
Since our research
team consisted primarily of legal practitioners and social
scientists, additional qualitative research (either through
focused eldwork or through participant observation, or
both) also helped to inform this study.
We consider how agricultural exceptionalism drives
RTFLs in legislative intent and rhetoric, but in substance
49. In common-law cases, courts base their decisions on case precedent and
general principles of equity. is di ers from statutory law, wherein
courts must give deference to and base their decisions on applicable gov-
erning statutes.
50. See One Rural, Right-to-Farm Laws by State, https://onerural.uky.edu/right-
to-farm-map (last visited July 8, 2022).
contract private-property rights as traditionally conceived
by removing nuisance remedies for smallholders and, in
e ect, enabling forcible takings by corporate agriculture.
Simultaneously, agricultural exceptionalism has paved
the way for avoiding environmental, state, and federal
law. Together, agricultural exceptionalism has enabled the
consolidation of agriculture and the successful avoidance
of the legal frameworks that hold other comparably sized
industries responsible for their actions.
III. Results
Of the 293 cases we analyzed that utilized RTFLs, 154
included CAFOs or business rms as parties, or 52.6% of
cases. By CAFOs we mean parties that we could identify as
large-scale industrialized livestock production facilities in
our reading of the case. By business rms, we mean incor-
porated entities like limited liability companies (LLCs),
corporations, and partnerships.
Out of the total body of cases we analyzed, 197 were
dispositive, meaning the RTFLs determined or related to
the case’s outcome. Of those 197 dispositive cases, CAFOs
or business rms were either plainti s or defendants in 101
cases, 51.2% of the total. is is a remarkably large num-
ber of business rms and CAFOs relative to the purported
purpose of RTFLs to protect family farms, which in con-
trast are often sole proprietorships. e U.S. Department
of Agriculture (USDA) reports that “[t]he vast majority
of family farms (89 percent) are operated as sole propri-
etorships owned by a single individual or family, and they
account for 59 percent of the value of production.”
51
Essen-
tially, the dispositive cases had a distribution of CAFO and
business rms like the parties in cases at large.
52
CAFOs and business rms are using and prevailing with
RTFLs at a level disproportionate to their share of produc-
tion in U.S. agriculture. CAFOs, as a party, account for
18.3% of the total dispositive cases (see Table 1). However,
they prevail in whole or in part in 69% of the cases they are
party to, or in 25 out of the 36 cases where they were plain-
ti s or defendants (see Table 2). By prevailing in part, we
mean that some part of the ruling was in favor of the party
at hand, but they did not win on all the merits of the case.
CAFOs, for example, won as defendants in 17 cases,
won as plainti s in 12 cases, and won in part in 5 cases.
Likewise, business rms tend to prevail in utilizing RTFLs,
but not as much as CAFOs do. (Note that the analyses
presented in Tables 1 and 2 are not mutually exclusive:
CAFOs can also be business rms like corporations, for
example, while corporations can also be CAFOs. How-
ever, one can exist without being the other). Business rms
received favorable rulings in 65% of the 92 cases they were
party to.
51. See E R S, USDA, A’ D F
F: 2018 E 18 (2018).
52. e descriptors we use for parties in litigation related to RTFLs are not nec-
essarily mutually exclusive. A party can be both a CAFO and a rm. Also,
rms can sue one another, which can make the same case enter into multiple
categories for party type as plainti , defendant, or split.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
52 ELR 10732 ENVIRONMENTAL LAW REPORTER 92022
Table 1. CAFOs and Firms as
Parties in Dispositive Cases
Party Type Total Dispositive Cases
CAFO 36
Business Firm (business entity) 92
Table 2. CAFOs and Firms Prevailing as
Defendants, Plaintiffs, and in Part
Prevailing
Party
Type
Prevail as
Defendant
Prevail
as
Plaintiff
Prevail
in Part
% of
Cases
Prevailed
CAFO 17 12 5 69%
Business
Firm 45 9 11 65%
IV. Discussion
e capacity for certain parties to prevail, particularly
business rms and CAFOs that do not easily align with
RTFL preamble language regarding the importance of
family farms, closely relates to speci c statutory provisions.
We identi ed statutory trends, and in Table 3, present lan-
guage that exists in at least one-quarter of U.S. states. e
broadly inclusive categories include conditions for immu-
nity from nuisance lawsuits; limitations on immunity;
de nitions of “protected operation”; limitations on dam-
ages and relief; the power of local governance; and whether
the statutes require operational compliance with the law to
receive protection.
V. Case Studies Examining RTFLs
We nd that while RTFLs were initially praised for pro-
tecting family farmers from urban expansion, they often
shield only large-scale industrial agriculture operations at
the expense of sole proprietor farmers and, more gener-
ally, rural property owners.
53
Following are case examples
demonstrating how these various types of provisions from
the categories in Table 3 shape court outcomes, leading to
favorable treatment of the largest industrial operations.
A. Conditions for Immunity From Nuisance Claims
and Limitations on Immunity
1. Protections for Operations That Have Existed
for Prescribed Time Period
Initially, when rst enacted, most state RTFLs stipulated
that for a farming operation to receive protection, it would
53. Mark B. Lapping & Nels R. Leutwiler, Agriculture in Con ict: Right-to-Farm
Laws and the Peri-Urban Milieu for Farming, in S A
N C 209 (William Lockeretz ed., Soil and Water Conservation So-
ciety 1987); Alexander A. Reinert, e Right to Farm: Hog-Tied and Nui-
sance-Bound, 73 N.Y.U. L. R. 1694 (1988).
need to exist before the party claimed a nuisance.
54
How-
ever, amendments have been made over time to protect
only particular types of agricultural activities and prac-
tices, regardless of whether or not those operations post-
date neighboring land uses. Many RTFLs now permit
new agricultural nuisances to develop through expansion,
changing practices or ownership, or through the mere exis-
tence of the operation for a stipulated amount of time—
often a period of just one year.
55
ese amendments have
eviscerated traditional notions of fairness by eliminating
the “coming to the nuisance” doctrine for nonagricultural
land uses.
Indeed, most RTFLs protect a farming operation once it
has been in operation for a speci c period of time. Nation-
ally, 48% of RTFLs protect operations once in operation
for one year (see Table 3). Eight states provide protections
based on varying periods of operation. For example, Min-
nesota, New York, and Oklahoma protect agricultural
operations from nuisance suits once they are in operation
for two years.
Initially, in Oklahoma, agricultural operations had to
pre-date neighboring nonagricultural activities to claim
protection from nuisance suits.
56
However, in 2009, the
state’s RTFL was amended to expand protections, even
for agricultural operations that were not there rst.
57
Now,
under Oklahoma’s RTFL, no nuisance action can be
brought against an agricultural operation that has “law-
fully been in operation for two (2) years or more prior to
the date of bringing the action.”
58
erefore, any type of
agricultural operation that has been in operation for two
years prior to the ling of a nuisance action will receive
RTFL protections.
59
is can be the case even if there is a
cessation or interruption in the farming operation.
2. Immunity Based on Defi nition of “Farm,” Despite
Changes in Size, Products, Practices, Etc.
RTFLs initially faced limited applicability in court when
plainti s could show a nuisance was caused by a sub-
stantial change in the farming operations. However, over
time, many RTFLs have evolved to provide cover in such
instances. Many RTFLs now protect farming operations
even if, among other things, their boundaries or size
change, or if di erent farm products are produced (see
Table 3 for speci c percentages).
60
54. is is the traditional “coming to the nuisance” doctrine, where a party can-
not move to an area and then claim an already existing land use is causing a
nuisance as explained above (see Reinert, supra note 53).
55. See examples at One Rural, New Mexico’s Right-to-Farm Summary, https://
onerural.uky.edu/right-to-farm/NM, and Arkansas’s Right-to-Farm Summa-
ry, https://onerural.uky.edu/right-to-farm/AR (last visited Aug. 2, 2022).
56. See O. S. tit. 50, §1.1 (1980).
57. 2009 Okla. Sess. Laws 147 (H.B. 1482) (amending, in relevant part, O.
S. tit. 50, §1.1).
58. O. S. A. tit. 50, §1.1 (West 2020).
59. Id. §1.1(C). Additional amendments in 2017 clari ed and added additional
protections so that the two-year clock does not restart even if an agricultural
operation expands or substantially changes its activities.
60. For example, in Michigan, a farm operation that conforms to “generally ac-
cepted agricultural and management practices” (GAAMPs) cannot be found
to be a nuisance because of a change in ownership or size, a temporary ces-
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
92022 ENVIRONMENTAL LAW REPORTER 52 ELR 10733
In practice, courts commonly hold that even if an agri-
cultural operation signi cantly changes the size or scope
of its operation, so long as whatever was taking place on
the land was previously some kind of agricultural use, the
operation is protected from nuisance claims. For example,
if a parcel of land had been used for row crops for many
sation or interruption of farming, enrollment in governmental programs,
adoption of new technology, or a change in type of farm product being
produced. M. C. L A. §286.473(3)(3) (2021). See also the
Kansas RTFL, which states:
(c) An owner of farmland who conducts agricultural activity pro-
tected pursuant to the provisions of this section:
(1) May reasonably expand the scope of such agricultural ac-
tivity, including, but not limited to, increasing the acre-
age or number of animal units or changing agricultural
activities, without losing such protection so long as such
agricultural activity complies with all applicable local,
state, and federal environmental codes, resolutions, laws
and rules and regulations
K. S. A. §2-3202 (West 2021).
years and then transitions into a 20,000-head cattle feed-
lot, surrounding neighbors would be barred from bringing
a nuisance suit against the feedlot, even if they attempted
to do so within the rst year of the feedlot’s existence.
61
Such decisions typically depend on the preexistence of a
di erent agricultural use (i.e., from crops to a massive cat-
tle con nement).
For example, in Indiana, amendments to the state’s
RTFL in 2005 created signi cant exclusions for what is
considered a signi cant change in an agricultural opera-
tion.
62
ese exclusions include (1)the conversion from one
type of agricultural operation to another type of agricul-
tural operation; (2)a change in the ownership or size of
the agricultural operation; (3) enrollment, reduction, or
cessation of participation in a government program; or
61. See, e.g., Himsel v. Himsel, 122 N.E.3d 935, 940 (Ind. Ct. App. 2019).
62. See 2005 Ind. Acts 23 (S.E.A. 267) (amending I. C §32-30-6-9).
Table 3. National Analysis of RTFLs
General RTF Criteria Specifi c Statutory Feature % Nationally # of States
Operations are
immune from
lawsuits . . .
if boundaries or size of operation change 28% 14
if change in locality 48% 24
if new technology used 30% 15
if operation produces a different product 26% 13
if there is a cessation or interruption in the farming operation 26% 13
once in operation for a year 48% 24
if there fi rst 46% 23
Operations are not
immune . . .
from lawsuits when they were a nuisance at the time it began 38% 19
Defi nition of the
farm, agriculture,
or farm operation
includes . . .
commercial 60% 29
facility 50% 25
land 50% 25
machinery 40% 20
noise, odor, or dust 40% 18
processing 34% 17
production 86% 43
use of chemicals or pesticides 48% 24
use of nutrients and/or fertilizer 38% 19
Attorney fees . . . awarded to a prevailing defendant 34% 17
Power of local
governance is . . .
superseded by RTFL generally 62% 31
superseded by RTFL in agricultural zone 12% 6
Requires
compliance
with . . .
generally accepted practices 78% 37
county law 44% 22
environmental law 28% 14
federal law 62% 31
other laws 52% 26
state law 66% 33
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
52 ELR 10734 ENVIRONMENTAL LAW REPORTER 92022
(4)the adoption of new technology.
63
Indiana courts have
interpreted these amendments to protect operations that
change from crops and smaller-scale livestock operations
to industrial-scale CAFOs.
In one case, the Indiana Court of Appeals held that a
farm, which consisted primarily of cropland and an accom-
panying historic dairy farm of approximately 100 cows,
converted into a 760-head dairy CAFO, did not constitute
a signi cant change.
64
In Parker v. Obert’s Legacy Dairy,
LLC, the court stated that “the Act removes claims against
existing farm operations that later undergo a transition
from one type of agriculture to another.”
65
erefore, it
found no “statutory support” for the neighboring plainti
farmer’s argument. Plainti s asserted that
[t]he Act was never intended to bar a nuisance claim by
landowners ... who have lived in an area for more than
40 years and then are impacted by a signi cant change
in use, such as the [concentrated] feeding operation,
which is established long after the acquisition of the
property and establishment of the use of the property by
the landowners.
66
While the court reasoned that “the size of the transfor-
mation, from 100 cows to 760 cows ... [was] substantial,”
it held the operation’s transition did not constitute a sig-
ni cant change under the RTFL. e court disagreed with
the notion that “the legislature could not have intended the
Act to apply to long-time residents whose daily, rural life
su ers at the hands of a ‘factory-like “mega-farm.”’”
67
us,
the state’s RTFL insulated the defendant’s dairy CAFO
expansion from a nuisance suit.
In a later case, another Indiana Court of Appeals ruled
similarly.
68
In Himsel v. Himsel, the court held that con-
version of a row crop farm to an 8,000-head hog CAFO
did not constitute a “signi cant change” under Indiana’s
RTFL.
69
Similar to the plainti s in Parker, the plainti s in
Himsel were neighboring farmers whose farming operations
pre-dated the conversion of the defendants’ crop farms into
massive industrial livestock production facilities. e Him-
sel court opined that the state’s RTFL was plainly “intended
to prohibit nonagricultural land uses from being the basis
of a nuisance suit against an established agricultural opera-
tion,” and that the law was “essentially a codi cation of the
doctrine of coming to the nuisance.”
70
63. I. C A. §32-30-6-9(d)(1)(A)-(D) (West 2021).
64. Conversion of part of a farm’s operations from cropland to support dairy, to
concentrated feeding operation, was not a “signi cant change” in the type
of agricultural operation, and, thus, after being in operation for more than
one year, was not a nuisance under the Right to Farm Act, even though the
number of cows kept on the property increased signi cantly. Id. §§32-30-
6-3(1)(A), 32-30-6-6, 32-30-6-9(d). Parker v. Obert’s Legacy Dairy, LLC,
988 N.E.2d 319 (Ind. Ct. App. 2013).
65. 988 N.E.2d at 323-25 (referencing I. C §32-30-6-9(d)(1)(A)
(2013)).
66. Id. at 324.
67. Id.
68. See Himsel v. Himsel, 122 N.E.3d 935, 940 (Ind. Ct. App. 2019).
69. Id. (emphasis added).
70. Id. at 943-44.
Here, the court essentially recognized the fact that the
original intent of the Act was not being served, as the defen-
dant’s crop farm did not transition to a CAFO until well
after the plainti s were there. Instead, the newly developed
CAFO postdated other agricultural uses in the area. ere-
fore, the court acknowledged that before the state’s RTFL
amendments were made in 2005, defendant’s CAFO
development would have constituted a signi cant change
in the agricultural operation, which would have rendered
RTFL protections inapplicable.
71
However, “[b]y specify-
ing that a conversion from one agricultural operation to
another is not a signi cant change, the Act restricts claims
against existing farm operations that later undergo a transi-
tion from one type of agriculture to another.”
72
us, the
traditional “coming to the nuisance” doctrine, as applied
by Indiana’s current RTFL, “now encompasses coming to
the potential future nuisance.”
73
Similarly, under Pennsylvania’s RTFL, no
nuisance action shall be brought against an agricultural
operation ... if the physical facilities of such agricultural
operations are substantially expanded or substantially
altered, and the expanded or substantially altered facility
has either: (1)been in operation for one year or more before
the date of bringing such action or (2)been addressed in
a nutrient management plan approved prior to the com-
mencement of such expanded or altered operation ... and
is otherwise in compliance therewith....
74
is statutory language has been interpreted by courts
in such a way that it essentially legalizes pollution
caused by the intensi cation of industrial animal agri-
cultural production.
75
In Burlingame v. Dagostin, for example, a Pennsylva-
nia court barred neighbors’ nuisance actions arising from
a CAFO spreading its liquid swine waste on surrounding
elds, which led to runo and bacteria pollution in nearby
waterways. e court’s rationale for protecting the facility
from nuisance litigation was based on the fact that it had a
nutrient management plan approved by the state’s Depart-
ment of Agriculture one year prior.
76
us, under Penn-
sylvania law, a crop farm that transforms into a massive
industrial livestock production facility, complete with an
adjacent wastewater reservoir containing millions of gal-
lons of waste, remains protected—regardless of resulting
air and water pollution.
Following the court’s logic, this means that if a CAFO
is not constructed one year prior to when a nuisance action
is brought, the operation can still be protected under the
RTFL so long as the operation has a waste plan approved
within the prescribed time period. is creates a substantial
71. Id. at 943.
72. Id.
73. Id. (emphasis added).
74. 3 P. S. §954(a)(1), (a)(2) (2021).
75. Burlingame v. Dagostin, 183 A.3d 462 (Pa. Super. Ct.), appeal denied, 648
Pa. 547 (Pa. 2018), appeal denied, McCabe v. Dagostin, 194 A.3d 559 (Pa.
2018).
76. Id.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
92022 ENVIRONMENTAL LAW REPORTER 52 ELR 10735
injustice in that neighbors can be barred from defending
themselves via a nuisance lawsuit prior to the construction
of a CAFO, before they become aware of any potential
problem. Even if plainti s le suit within one year of the
commencement of operations at a CAFO, Pennsylvania’s
RTFL will still shut the courthouse doors if the opera-
tion submits a waste management plan (WMP) with the
Department before that point.
77
ese cases exemplify how state RTFLs have evolved to
protect large-scale industrial and agricultural operations
to the detriment of other types of farming operations. In
many cases, RTFLs have done away with the traditional
“coming to the nuisance” doctrine to protect new indus-
trial operations and existing operations transitioning to
more intense industrial practices from nuisance claims by
other farmers that were there rst. is counteracts and
contradicts general principles of equity and fairness. It
shields industrial agriculture operations from accountabil-
ity for their negative impacts on surrounding farms and
rural areas by forcibly taking dimensions of property rights
from those neighboring such operations. It demonstrates
how agricultural exceptionalism, advanced by RTFLs,
provides industrialized agriculture special status and rights
over other types of farming.
B. Limitations on Damages and Relief
1. Fee-Shifting, Caps on Damages, and Other
Remedies
Some states also have dubious fee-shifting provisions that
only allow a successful defendant in a nuisance lawsuit to
recoup attorney fees and costs.
78
is poses a signi cant
risk for prospective plainti s, which may consist of just a
few family farm neighbors, who are often unable to pay
the opposing side’s legal fees should they be unsuccessful.
RTFLs in 17 states stipulate that attorney fees be awarded
to the prevailing defendant (Table 3). As Table 3 shows,
business rms and CAFOs most often prevail as defen-
dants, meaning they are positioned to bene t most from
such statutes. In contrast, only eight states award attorney
fees to the prevailing party generally.
ese provisions tend to sti e nuisance cases brought
against industrial and agricultural nuisances in the rst
place.
79
For example, in a 2000 lawsuit in Wisconsin, a
crop and cattle farmer claimed his neighbor’s commercial
cranberry operation was ooding his property, creating a
nuisance that curtailed his ability to graze his cattle and
use his farmland.
80
e court ruled in favor of the cran-
berry operation, arguing that the cattleman did not meet
77. Unless there is an adequate public notice and input process that is triggered
upon the submittal of CAFO WMPs with the Department, which there is
not, potentially a ected neighbors do not become aware of the fact that the
one-year time clock to bring a nuisance action is ticking.
78. See, e.g., W. S. §823.08(4)(b) (2021); 740 I. C. S. A.
70/4.5 (2021).
79. See, e.g., M. C. L §286.473 (2022).
80. Zink v. Khwaja, 608 N.W.2d 394 (Wis. Ct. App. 2000).
the required burden of proof that the cranberry operation
caused the ooding. Under the state’s RTFL, the court
ordered the plainti to pay the defendant cranberry opera-
tion’s litigation expenses, which included $24,000 in attor-
ney fees.
81
e cattleman subsequently argued that the fee-
shifting provision should not apply because the law was
not intended to pit one agricultural use against another.
Rather, the plainti asserted, the purpose of the state’s
RTFL was to hamper con icts between “agricultural and
other uses of land.”
82
e court disagreed, reasoning that
the plain language of the statute “unequivocally” man-
dated the recovery of fees by a defendant “in any action in
which an agricultural use or agricultural practice is alleged
to be a nuisance.”
83
Given that “litigation expenses” under the statute
include attorney fees, expert witness and engineering fees,
and the like,
84
the cost assessed to the plainti was signi -
cant. When litigation costs are shifted only to unsuccessful
plainti s but not unsuccessful defendants, the law e ec-
tually deters people from ling nuisance suits. Often, the
potential of having to bear both sides’ litigation expenses
can pose too great of a risk for prospective plainti s, espe-
cially if they consist of a single neighboring farmer.
Some states have amended their RTFLs to tighten their
anti-nuisance provisions limiting damage awards, among
other criteria, after an agribusiness entity loses a case.
85
Such tightening occurred in response to a series of nui-
sance cases brought against a hog industry giant, Smith-
eld Foods, given the amount of damages awarded to
plainti s. For example, more than 500 North Carolina
residents neighboring Smith eld-owned Murphy-Brown
hog facilities brought 26 lawsuits in federal court seeking
compensation for the decades of su ering endured because
of the adjacent hog facilities.
86
e awards, totaling mil-
lions, may seem like a signi cant amount of money. How-
ever, they may still not have the desired deterrent e ect on
future bad practices by the world’s largest hog producer—
held by WH Group Ltd., a nancial holding company
directed by Chinese executives and traded on the Hong
Kong Stock Exchange.
Despite non-domestic security bene ciaries, agribusi-
ness industry groups, including the North Carolina Farm
Bureau Federation, successfully pushed legislation signi -
cantly restricting the ability of impacted citizens to bring
future nuisance lawsuits against livestock operations.
87
e
81. See W. S. §823.08(4)(a) (2022), (4)(b).
82. Id. §823.08(1).
83. Zink, 608 N.W.2d at 398-99 (emphasis added).
84. W. S. §823.08(4) (2022).
85. Lisa Sorg, Neutering Nuisance Laws in North Carolina, NC P’ W
(Nov. 15, 2017), http://www.ncpolicywatch.com/2017/11/15/neutering-
nuisance-laws-north-carolina/.
86. Erica Hellerstein & Ken Fine, A Million Tons of Feces and an Unbear-
able Stench: Life Near Industrial Pig Farms, G (Sept. 20, 2017),
https://www.theguardian.com/us-news/2017/sep/20/north-carolina-hog-
industry-pig-farms.
87. See Sess. Law 2018-113, S.B. 711, Gen. Assemb., 2017 Leg. Sess. (N.C.
2018), available at https://www.ncleg.net/Sessions/2017/Bills/Senate/PDF/
S711v8.pdf; see also Sorg, supra note 85.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
52 ELR 10736 ENVIRONMENTAL LAW REPORTER 92022
new North Carolina Farm Act of 2018, which became law
despite a veto by the state’s governor (overridden by the
legislature), now makes it far more di cult for plainti s
to pursue such cases successfully. One such provision now
requires that plainti s live within one-half-mile of the
alleged nuisance, e ectively eliminating the capacity to
sue based on pollution plumes that travel further by air
or water. Beyond this, the livestock industry was success-
ful one year earlier in passing legislation capping the dam-
ages plainti s can be awarded, such that they can only be
compensated for the loss of the value of their property, but
not for the loss of quality of life. While this law was not in
e ect when the cases against Murphy-Brown were led, it
ensures against plainti s being compensated in any such
way in the future.
Along the same lines, fee provisions in Missouri were
tightened after a jury awarded neighbors $11 million in a
nuisance suit against Premium Standard Farms. Not long
after plainti s were successful in this case, new legislation
was passed into law signi cantly capping monetary dam-
ages that plainti s could be awarded to only the loss in
fair market value to their property.
88
Also, in New Mexico,
shortly after a set of nuisance cases were led against sev-
eral large-scale dairy operations that signi cantly impacted
neighbors, an amendment to the state’s RTFL was passed.
89
e amendment purported to protect the industry against
future actions allegedly generated by “out-of-state attorneys
seeking to put the state’s dairy industry out of business.”
90
Additionally, the American Legislative Exchange Council,
a coalition of large corporate interest groups, such as the
National Pork Producers Council, have created model anti-
nuisance laws for states to use, some of which have been
enacted verbatim.
91
C. Protection Through Restrictions on the
Power of Local Governance
1. Restrictions From Local
Governmental Regulation
While purporting to protect farming and farmland, RTFLs
not only strip individual landowners and farmers of the
ability to protect their property, but also impact the ability
of local governments to address agricultural nuisances and
the negative environmental impacts that accompany them.
Indeed, local laws and regulations are often restricted or
superseded by RTFLs, depending on the state. RTFLs in
31 states speci cally state that they supersede the power of
local governments to act, while six states limit local gov-
ernance in agricultural zones (see Table 3). ese kinds of
88. Sorg, supra note 85.
89. See Jessica Johnson, “Right-to-Farm” Bill Tramples Rights of Residents, A-
J. (Feb. 20, 2016), https://www.abqjournal.com/727013/rightto-
farm-bill-tramples-rights-of-residents.html.
90. Personal communication by Danielle Diamond with an individual attend-
ing a legislative committee hearing on the bill (Feb. 2016).
91. Sorg, supra note 85.
provisions exacerbate the other barriers faced by rural com-
munities in addressing environmental harms.
RTFLs often also speci cally prohibit local zoning con-
trols and regulation over land uses in agricultural areas
and/or prevent local governments from having authority
over where CAFOs are located. In essence, CAFOs and
other intense agricultural uses have largely become exempt
from local zoning laws.
92
is removes the power of local
communities to choose the kind of agriculture present in
their communities, as well as their ability to decide appro-
priate locations for intense agricultural uses. Many RTFLs
explicitly restrict local authority over these kinds of deci-
sions and the ability of local governments to deal with pub-
lic nuisances occurring on agricultural land.
93
For example,
Arkansas’ RTFL states:
Any and all ordinances adopted by any municipality or
county in which an agricultural operation is located mak-
ing or having the e ect of making the agricultural opera-
tion or any agricultural facility or its appurtenances a
nuisance or providing for an abatement of the agricultural
operation or the agricultural facility or its appurtenances
as a nuisance in the circumstances set forth in this chapter
is void and shall have no force or e ect.
94
In general, state statutes grant land use zoning powers to
local governments through their police powers. Police pow-
ers are broadly intended for governments to promote public
health, safety, morals, and general welfare.
95
Local govern-
ments use these powers to regulate and control the types
92. For example, in Illinois, most businesses that store, treat, transport, or dis-
pose of waste are required to obtain permits from the Illinois Environmental
Protection Agency. However, before a business can proceed with a permit-
ting application for a “pollution control facility” with the state agency, it
must obtain approvals from the local siting authority (i.e., the county or
other municipal entity with jurisdiction). See 415 I. C. S. 5/39.2
(2022). County boards or governing municipal bodies are to provide for
notice, hearing, and public input on permitting applications, and may also
impose conditions on the land use that are not inconsistent with state regu-
lations. See id.
However, when it comes to CAFOs, counties have no authority over
siting decisions, and there are no constitutional due process protections for
most potentially a ected parties. See Livestock Management Facilities Act,
510 I. C. S. 77/1 et seq. (2022). See also Helping Others Maintain
Environmental Standards v. Bos, 941 N.E.2d 347, 362 (Ill. App. Ct. 2010),
where the court found that plainti s did not have standing to seek review of
an Illinois Department of Agriculture siting decision of a CAFO. [Editor’s
Note: Danielle Diamond worked with the Illinois citizen group Helping
Others Maintain Environmental Standards in her capacity as a Research
Associate for Northern Illinois University, as well as in her capacity as an
organizer and policy advocate with the Illinois Coalition for Clean Air &
Water and the Socially Responsible Agriculture Project.]
93. A. C A. §2-4-105 (West 2022).
94. Id.
95. Local land use regulations are subject to constitutional limitations, such as
governmental takings, due process, and so forth. A constitutional “taking”
typically requires compensation when government action results in no other
economically viable uses for the land. Due process protections ensure all
parties involved (landowners and those who may be a ected by a zoning
action) have procedural rights, such as the rights to notice, hearing, and
an impartial decisionmaker. Substantive due process, the Equal Protection
Clause, and First Amendment also apply in land use decisions. Under the
Supremacy Clause, the federal government and/or states can preempt cer-
tain land use regulations through express preemptions (if it can be assumed
the state or federal government intended to regulate an entire eld) and/or
if a local zoning requirement directly con icts with state or federal law.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
92022 ENVIRONMENTAL LAW REPORTER 52 ELR 10737
of land uses allowed in certain areas through designated
“zoning districts” and by imposing speci c development
controls, such as lot sizes, setbacks, building appearances,
and so on. Also, certain types of land uses that are not
automatically allowed in speci ed zoning districts can be
allowed on a case-by-case basis via conditional or special
use permits or through variances, etc.
96
In essence, zoning powers enable local governments to
oversee community growth to ensure that varying kinds
of land uses are compatible at their respective locations.
97
Zoning powers also include the ability to determine if and
when certain types of industries can adjust their practic-
es.
98
Again, these local powers are commonly restricted
or prohibited by state RTFLs or, in some cases, via other
state laws preempting the eld of regulation over a type of
agricultural practice and even through farmland preserva-
tion statutes.
99
For example, an Illinois court dealt directly with the
applicability of the state’s agricultural exemption law. In
County of Knox ex rel. Masterson v. Highlands, L.L.C.,
neighbors of a large-scale hog con nement facility chal-
lenged the issuance of construction permits by their county
allowing the facility to expand.
100
e neighbors appealed
96. e purpose behind local land use zoning laws is to separate incompatible
land uses so that they do not interfere with each other or otherwise adversely
impact public health and safety.
97. For example, a municipality might restrict the location of race car tracks in
a residential zoning district as a measure to protect the health and safety of
existing residents.
98. All other industries are subject to these kinds of controls. For example,
music and dance halls are required to incorporate modern sound equip-
ment and sound bu ers into their business models so as not to impact
neighboring landowners. All di erent categories of landowners are re-
quired to conduct themselves so they do not unreasonably interfere with
others’ ability to use and enjoy their own property. e results often lead
to innovation and advancement. In agriculture, however, state legislatures
have dictated that agriculture operations are not required to act in the
same neighborly manner.
99. e Illinois Counties Code restricts counties from zoning powers
exercised so as to impose regulations, eliminate uses, buildings, or
structures, or require permits with respect to land used for agricul-
tural purposes, which includes the growing of farm crops, truck
garden crops, animal and poultry husbandry, apiculture, aquacul-
ture, dairying, oriculture, horticulture, nurseries, tree farms, sod
farms, pasturage, viticulture, and wholesale greenhouses when such
agricultural purposes constitute the principal activity on the land.
55 I. C. S. A. 5/5-12001 (2022). Also under the state’s Live-
stock Management Facilities Act, counties are only allowed to give the state
Department of Agriculture an “advisory non-binding” opinion as to wheth-
er a livestock facility (utilizing a lagoon or housing more than 1,000 animal
units) should be permitted within their jurisdictions. e Act states that a
“county board shall submit ... an advisory, non-binding recommendation
to the Department about the proposed new facility’s construction.” 510 I.
C. S. A. 77/12(b) (2022). is statute thus preempts counties
from having a meaningful role in the siting of new CAFOs, as the Depart-
ment of Agriculture can and commonly does override county recommenda-
tions objecting to the construction of new facilities.
Another example is Tennessee. Tennessee’s code regarding counties ex-
plicitly states that the “powers granted to counties by this part do not in-
clude the regulation of buildings used primarily for agricultural purposes; it
being the intent of the general assembly that the powers granted to counties
by this part should not be used to inhibit normal agricultural activities.”
T. C A. §5-1-122 (West 2022). ese kinds of statutes again
show the pervasiveness of agricultural exceptionalism that has in uenced
policy even beyond state RTFLs.
100. 705 N.E.2d 128, 130 (Ill. App. Ct. 1998). is case was not included in
our quantitative analyses on RTFLs. It is being referred to in this context for
discussion purposes to demonstrate how agriculture can receive exemptions
the county permits, which then triggered a county zoning
resolution that stayed the permits for the expansion.
101
e
facility appealed the county’s action in circuit court.
In their defense, the county and other objectors asserted
that the state’s agricultural exemption
102
did not apply and,
therefore, the county had the jurisdiction to restrict the
livestock facility’s proposal to expand. e county also
argued that the animal con nement operation was more
closely related to an “industry” rather than “agriculture.”
103
is was due to its “potential for a ecting the public
health, safety, comfort and general welfare of its environs”
and that “as a matter of public policy, the potential envi-
ronmental stress created by such an operation warrant[ed]
a 21st-century clari cation of what agriculture is in this
State.”
104
Despite a strong dissenting opinion from a prior
proceeding, the court rejected the county’s argument and
found in favor of the hog con nement proposal.
105
Another case in Iowa involved a challenge to a local
county board’s e ort to regulate CAFOs by the Worth
County Farm Bureau. Worth County enacted its Rural
Health Family Farm Protection Ordinance, a “thought-
ful product of the cumulative work of the Worth County
Board of Health, a citizen advisory committee, and the
Board of Supervisors,” to address concerns over air pol-
lution and water contamination caused by industrial
livestock operations. Responding to the Farm Bureau’s
ordinance challenge, the Iowa Supreme Court held that
it was expressly preempted by state statute, which “left no
room for county regulation.”
106
Additionally, agricultural use exemptions are often
worded to prevent local regulation over land being used
for “agricultural purposes.” In e ect, Iowa creates two-
way zoning for agricultural exceptionalism: the creation of
from local regulation through other statutory means. In this particular case,
the court considered the applicability of the Illinois Counties Code as op-
posed to the state’s RTFL.
101. Id.
102. e court stated:
e statutory authority granting Knox County the right to regulate
and restrict the location and use of structures is found in section
5-12001 of the Counties Code (55 ILCS 5/5-12001) (West 1996).
is section expressly states that counties have no authority to im-
pose regulations or require permits with respect to land used or to
be used for agricultural purposes.
Id. at 131.
103. County of Knox ex rel. Masterson v. Highlands, L.L.C., 723 N.E.2d 256,
264, 30 ELR 20226 (Ill. 1999).
104. Id.
105. Id.; see also County of Knox ex rel. Masterson v. Highlands, L.L.C., 705
N.E.2d 128 (Ill. App. Ct. 1998). Around the same time as the Highlands
litigation was taking place, the state enacted a law preempting the county
from having any binding authority to make siting decisions regarding CA-
FOs within their jurisdictions. Other laws preempting or restricting county
or local municipal controls have similarly been enacted in other states. For
example, Wisconsin has signi cantly limited local control over livestock
facility siting permits. Wisconsin’s livestock siting law “not only expressly
withdraws political subdivisions’ power to disapprove livestock facility siting
permits absent some narrow exceptions, but also expressly withdraws politi-
cal subdivisions’ power to impose certain conditions when they grant such
permits.” Adams v. State Livestock Facilities Siting Review Bd., 820 N.W.2d
404, 417, 42 ELR 20149 (Wis. 2012). “ is imposition by the legislature
leaves no authority to the political subdivisions to grant permits in a manner
inconsistent with the Siting Law.” Id.
106. Worth County Friends of Agric. v. Worth County, 688 N.W.2d 257, 265
(Iowa 2004).
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
52 ELR 10738 ENVIRONMENTAL LAW REPORTER 92022
agricultural areas a orded nuisance protections for farm-
ing operations; and the simultaneous prohibition of zoning
powers over agricultural areas.
107
Iowa’s RTFL authorizes
counties to create agricultural land preservation areas by
passing ordinances to preserve land for agricultural use.
108
However, counties are prevented from regulating CAFOs
in these areas.
109
State law restricts local authority to enact
any ordinances that would regulate any condition or activ-
ity occurring on land used for the production, care, feed-
ing, or housing of animals.
110
It deserves to be mentioned that Iowa is one of the only
states where a supreme court has held an RTFL uncon-
stitutional. In Bormann v. Board of Supervisors, the Iowa
Supreme Court ruled that restricting regulation in agricul-
tural land preservation areas constituted an unjust taking,
violating the constitutional protections a orded private-
property ownership.
111
e court reasoned that the RTFL
created an easement without just compensation for activi-
ties that would have been considered a nuisance if the land
had not been designated as an agricultural area. However,
the legal capacity to regulate CAFOs in such agricultural
areas remains constrained.
In Idaho, cities, counties, taxing districts, and other
political subdivisions are prohibited from enacting any
ordinances or resolutions declaring “any agricultural oper-
ation, agricultural facility or expansion thereof that is oper-
ated in accordance with generally recognized agricultural
107. See I C A. §335.2 (2022) (“no ordinance adopted under this
chapter applies to land, farmhouses, farm barns, farm outbuildings or other
buildings or structures which are primarily adapted, by reason of nature and
area, for use for agricultural purposes”).
108. I C A. §352.1 (2022).
109. Iowa statute states:
A county shall not adopt or enforce county legislation regulating
a condition or activity occurring on land used for the production,
care, feeding, or housing of animals unless the regulation of the
production, care, feeding, or housing of animals is expressly au-
thorized by state law. County legislation adopted in violation of
this section is void and unenforceable and any enforcement activ-
ity conducted in violation of this section is void. A condition or
activity occurring on land used for the production, care, feeding,
or housing of animals includes but is not limited to the construc-
tion, operation, or management of an animal feeding operation,
an animal feeding operation structure, or aerobic structure, and to
the storage, handling, or application of manure or egg washwater.
I C A. §331.304A(2) (West 2022).
110. Id.:
County ordinance setting standards for toxic and odorous air emis-
sions, safety for workers in con nement feeding operations, and
water pollution by con nement feeding operations was expressly
preempted by statute prohibiting county from adopting legisla-
tion regulating a condition or activity occurring on land used for
the production, care, feeding, or housing of animals, even though
county promoted ordinance as a public health ordinance, and thus
ordinance was void and unenforceable; ordinance regulated activi-
ties that were part of livestock con nement operations.
Worth County Friends of Agric. v. Worth County, 688 N.W.2d 257, West-
law Headnote 13 (Iowa 2004). In any nuisance action or proceeding against
a feedlot brought by or on behalf of a person whose date of ownership
of realty is subsequent to the established date of operation of that feedlot,
proof of compliance with §§172D.3 and 172D.4 shall be an absolute de-
fense, provided that the conditions or circumstances alleged to constitute
a nuisance are subject to regulatory jurisdiction in accordance with either
§172D.3 or §172D.4. I C A. §172D.2 (West 2022).
111. 584 N.W.2d 309, 29 ELR 20235 (Iowa 1998).
practices to be a nuisance.”
112
Likewise, under Colorado’s
RTFL, any ordinance or resolution by any local govern-
ment unit making the operation of any agricultural opera-
tion a nuisance or providing for the abatement of a nuisance
is considered void.
113
D. Protections Based on Compliance With
“Generally Accepted Practices” or Local,
State, and/or Federal Laws
1. Protections Based on “Generally Accepted”
or “Normal” Agricultural Practices
e phrases “generally accepted” or “normal” are fre-
quent in RTFLs. Some versions of “general” or “normal
accepted” practices are present in 74% of RTFLs (see Table
3). “Best management practices,” a more precise method of
identifying acceptable practices, are only present in nine
states. ese phrases typically create a presumption that
agricultural operations cannot be nuisances if operating
consistently with applicable laws or “generally accepted
agricultural practices.”
For example, Hawaii’s RTFL stipulates “[t]here shall be
a rebuttable presumption that a farming operation does not
constitute a nuisance” for any reason “if the farming opera-
tion has been conducted in a manner consistent with gen-
erally accepted agricultural and management practices.”
114
ese presumptions can be extremely di cult for plain-
ti s to overcome because agriculture is often exempted
from most environmental laws, and “generally accepted
agricultural practices” are rarely ever de ned. us, if an
operation is polluting and creating a nuisance, plainti s’
cases may never be heard, given the di culty in producing
evidence that counters the vague language and unde ned
meaning of “generally accepted agricultural practices.”
Terms such as “normal agricultural operations” or
“generally accepted agricultural practices” commonly are
not de ned, but may cross-reference other state or fed-
eral standards. Some states de ne these terms in their
statutes, but others do not. For instance, in Michigan,
a “farm or farm operation” shall not be found to be a
public or private nuisance if the farm or farm operation
alleged to be a nuisance conforms to “generally accepted
agricultural and management practices” according to
policy determined by the Michigan Commission of Agri-
culture and Rural Development.
115
e law states that such “practices shall be reviewed
annually by the Michigan commission of agriculture and
revised as considered necessary.”
116
us, standards like this
can uctuate, making it challenging for plainti s to estab-
lish the burden of proof.
112. I C A. §22-4504 (West 2022).
113. C. R. S. A. §35-3.5-102(5) (West 2022).
114. H. R. S. §165-4 (2022).
115. M. C. L A. §286.473 (West 2022).
116. M. C. L A. §286.47, Sec.3. (1) (West 2022).
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
92022 ENVIRONMENTAL LAW REPORTER 52 ELR 10739
In one instance, in Ste ens v. Keeler, when a defendant
hog facility was investigated by the Michigan Department
of Agriculture and subsequently noti ed that it was not
operating in compliance with “generally accepted and rec-
ommended livestock waste management practices,” a nui-
sance suit was still barred.
117
Here, the court decided that
because the violation notice from the Department stated
that the “defendants could comply with, and be protected
by, the RTFL if they developed and implemented a waste
utilization plan,” the facility quali ed for RTFL protec-
tions.
118
Given that the defendant hog CAFO developed a
WMP about one year later, which the Department deemed
acceptable, the court rendered the facility in compliance
with the state’s “voluntary right to farm guidelines.”
119
e defendant’s motion for summary judgment was thus
granted, denying the plainti s the right to have an eviden-
tiary hearing on the matter.
120
So again, even in a case where
the plainti s were able to prove that a state agency o cially
determined a facility had not been operating in accordance
with “generally accepted agricultural practices,” the RTFL
still barred them from seeking redress.
Notably, when a CAFO operates in accordance with
“generally accepted” practices, it can still have negative
impacts on surrounding neighbors and the environment.
121
Air and water pollution, odor, ies, and other vectors inevi-
tably escape the boundaries of CAFO sites.
122
Accordingly,
a nuisance can certainly exist, even when a CAFO com-
plies with “generally accepted” or “recommended” waste
management standards. As discussed, even in cases where
a facility is deemed in noncompliance by a state regulatory
entity, a ected neighbors may still be prevented from hav-
ing the opportunity to present evidence of the harms they
were experiencing.
Broadly, the outcome of this case illuminates how agri-
cultural exceptionalism is embedded in multiple levels of a
state’s legal system, including holding industrial operations
117. Id. See Ste ens v. Keeler, 503 N.W.2d 675, 677 (Mich. Ct. App. 1993). e
court stated:
e RTFA [Right to Farm Act] prohibits nuisance litigation against
a farm or farm operation that conforms to generally accepted agri-
cultural and management practices.... After an inspection of de-
fendants’ farm was conducted by Department of Agriculture ... on
July 14, 1989, defendants were noti ed that their farm operation
was not in compliance with generally accepted and recommended
livestock waste management practices. e notice stated defendants
could comply with, and be protected by, the RTFA if they devel-
oped and implemented a waste utilization plan by May 30, 1990.
e plan was developed and approved on July 16, 1990 ... [the
Department] found the plan to be acceptable ... and indicated that
defendants’ use of the plan’s manure management methods ren-
dered defendants’ farm operation in compliance with the voluntary
right to farm guidelines.
Considering this evidence, the court ultimately held that the defendants’
operation complied with accepted practices. Id.
118. See Ste ens, 503 N.W.2d at 677 (emphasis added).
119. Id.
120. Id.
121. is is veri ed by personal observations from the eld, as well as via com-
munications with a ected neighboring property owners from various states
and regions in the country. [Editor’s Note: ese observations and commu-
nications were made by Danielle Diamond in her capacity as a Director for
the Socially Responsible Agriculture Project.]
122. See generally P C I F A P,
supra note 41.
to “voluntary” or “recommended” waste management stan-
dards. Basing RTFL protections on compliance (or antici-
pated compliance) with regulations that fail to address the
problems being created e ectively prevents a ected neigh-
boring farmers from addressing their grievances through
both administrative processes and in courts of law.
2. Protections Based on Compliance
With State or Federal Laws
Often, when courts are relied upon to de ne or interpret
the applicability of other environmental laws in the RTFL
context, courts frequently rationalize that an agricultural
exemption applies. To fully understand how RTFLs opera-
tionalize these injustices, it is essential to understand how
they interplay with other state and federal environmental
laws. Often RTFLs appear reasonable because their protec-
tions hinge on an operation’s compliance with other appli-
cable laws.
By looking on a general basis, it seems most RTFLs ref-
erence surface-level deference to other legal frameworks,
whether county, environmental, federal, or state laws
(Table 3). At 66% and 62% of RTFLs referencing state and
federal laws, respectively, these laws seem to be of marked
importance. However, what rarely comes into full focus
is that most CAFOs and other types of intense industrial
agricultural practices are largely exempt from most state
and federal environmental laws, and local governments are
often preempted from imposing regulations on them. is
can create a near-impossible burden for most plainti s to
overcome, as it is challenging to prove noncompliance with
nonexistent or otherwise vague and toothless laws.
is section provides a synopsis of how CAFOs and
industrial agriculture operations have escaped proper
regulation and enforcement under federal and state envi-
ronmental standards that are regularly and consistently
imposed on other industries. At a fundamental level, this is
because of a lack of transparency. ere is little data on the
amount of pollution released from industrial-scale animal
facilities, which reduces the public’s ability to fully compre-
hend the magnitude of industrial agriculture’s pollution.
123
During the 1970s, the United States enacted some of
its rst and most important environmental laws, such as
the CAA and the CWA.
124
ese laws are administered by
123. See, e.g., CERCLA/EPCRA Administrative Reporting Exemption for Air
Releases of Hazardous Substances From Animal Waste at Farms, 73 Fed.
Reg. 76948 (Dec. 18, 2008). is rule
provides an administrative reporting exemption from particular no-
ti cation requirements under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended.
In addition, this nal rule provides a limited administrative re-
porting exemption in certain cases from requirements under the
Emergency Planning and Community Right-to-Know Act. Speci -
cally, the administrative reporting exemption applies to releases of
hazardous substances to the air that meet or exceed their reportable
quantity where the source of those hazardous substances is animal
waste at farms.
124. In 1972, Congress enacted the CWA “to restore and maintain the chemi-
cal, physical, and biological integrity of the Nation’s waters.” 33 U.S.C.
§1251(a). e CAA was enacted in 1970, and is the main comprehensive
federal law that regulates air emissions via EPA. 42 U.S.C. §§7401 et seq.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
52 ELR 10740 ENVIRONMENTAL LAW REPORTER 92022
the U.S. Environmental Protection Agency (EPA) or by
the states via federally approved programs.
125
e CWA has
been the primary federal environmental law applicable to
CAFOs since the 1970s.
126
e rst appearance of the term
“concentrated animal feeding operation” was in the federal
CWA, under the de nition of a “point source.”
127
Despite
its long history of regulatory authority over CAFOs, EPA
has never adequately regulated the industry. e Agency
unsuccessfully dealt with a series of challenges to its
attempts via the CWA’s national pollution discharge elimi-
nation system (NPDES) program.
128
e NPDES program intends to “eliminate” pollution
from point sources into the nation’s waters.
129
One of the
most critical aspects of the NPDES program for CAFOs
is that permit coverage hinges on the submittal of WMPs
with permit applications. en, WMPs are subject to reg-
ulatory agency review and public input and comment.
130
Additionally, citizens can appeal NPDES permits if they
are deemed inadequate in preventing water pollution.
With CAFOs, WMPs are incorporated into the terms
of NPDES permits, which then become enforceable if vio-
lated. NPDES permits are enforceable by EPA, authorized
states, or by citizens via the CWA’s citizen suit provisions.
131
EPA’s CAFO NPDES permitting program thus is struc-
tured to give the public access to important information
about how CAFOs intend to manage their waste and also
to allow the public a meaningful role in the regulatory pro-
cess, especially when regulatory agencies fail to act.
In light of the growing environmental threats posed
by CAFOs, in January 2001, EPA proposed to “revise
and update” its rst set of CAFO CWA regulations.
132
125. E.g., 33 U.S.C. §§1311(a), 1342, 1362.
126. See Waterkeeper All., Inc. v. Environmental Prot. Agency, 399 F.3d 486,
494 (2d Cir. 2005) (“the EPA rst promulgated regulations for CAFOs
in 1974 and 1976—regulations that, very generally speaking, de ned the
types of animal feeding operations that qualify as CAFOs, set forth various
NPDES [national pollution discharge elimination system] permit require-
ments, and established e uent limitation guidelines for CAFOs” (citing 41
Fed. Reg. 11458 (Mar. 18, 1976); 39 Fed. Reg. 5704 (Feb. 14, 1974))).
127. 33 U.S.C. §1362(14) (“ e term ‘point source’ means any discernible, con-
ned and discrete conveyance, including but not limited to any pipe, ditch,
channel, tunnel, conduit, well, discrete ssure, container, rolling stock, con-
centrated animal feeding operation, or vessel or other oating craft, from
which pollutants are or may be discharged...”).
128. See, e.g., Waterkeeper All., Inc., 399 F.3d at 494; see also National Pork Pro-
ducers Council v. Environmental Prot. Agency, 635 F.3d 738, 41 ELR
20115 (5th Cir. 2011).
129. 33 U.S.C. §§1311(a), 1342.
130. Under the CWA:
Public participation in the development, revision, and enforcement
of any regulation, standard, e uent limitation, plan, or program
established by the Administrator or any State under this chapter
shall be provided for, encouraged, and assisted by the Administrator
and the States. e Administrator, in cooperation with the States,
shall develop and publish regulations specifying minimum guide-
lines for public participation in such processes.
33 U.S.C. §1251 (West).
131. Citizen suit provisions provided for under federal environmental laws grant
citizens the ability to step in the shoes of regulatory agencies when they fail
to act. After providing the agency and the violator 60 days’ advanced notice
of the intent to bring a citizen suit, if the problem remains unaddressed or
if the responsible agency is not diligently prosecuting a violation, the citizen
suit may proceed.
132. Waterkeeper All., Inc., 399 F.3d at 495 (citing National Pollutant Discharge
Elimination System Permit Regulation and E uent Limitations Guidelines
e Agency explained that its proposed new rule aimed
to address “not only inadequate compliance with existing
policy but also the ‘changes that have occurred in the ani-
mal production industries.’”
133
It was pointed out that the
“‘trend toward fewer but larger operations, coupled with
greater emphasis on more intensive production methods
and specialization’ . . . along with ‘increased reports of
large-scale discharges from these facilities’ and ‘continued
runo ’” had contributed to a signi cant increase in pollu-
tion of many U.S. waterways.
134
e Agency promulgated
its revised “Final CAFO Rule” in February 2003.
135
How-
ever, agribusiness industry pressure and court challenges
largely resulted in the backsliding of EPA’s attempts to reg-
ulate the industry. In e ect, EPA’s federal CAFO NPDES
permitting program has been gutted.
Both environmental protection organizations and agri-
business industry groups challenged the revised 2003 rule
in Waterkeeper Alliance, Inc. v. Environmental Protection
Agency.
136
One of the unfortunate outcomes of this case was
that the court decided that EPA did not have the authority
to require all CAFOs to apply for NPDES permits based
on their “potential to discharge.”
137
e court also found
and Standards for Concentrated Animal Feeding Operations, 66 Fed. Reg.
2960, 2960 (proposed Jan. 12, 2001) [hereinafter Proposed Rule]).
133. Proposed Rule, 66 Fed. Reg. at 2972.
134. Waterkeeper All., Inc., 399 F.3d at 495.
135. Id. (citing 40 C.F.R. §§9, 122, 123, 412); see also National Pollutant Dis-
charge Elimination System Permit Regulation and E uent Limitation
Guidelines and Standards for Concentrated Animal Feeding Operations,
68 Fed. Reg. 7176, 7176 (Feb. 12, 2003) [hereinafter Preamble to the
Final Rule].
136. 399 F.3d at 494-95. ose that challenged the Final Rule included the “en-
vironmental petitioners” (Waterkeeper Alliance, Inc., Sierra Club, Natural
Resources Defense Council, Inc., and American Littoral Society) and the
“farm petitioners” (American Farm Bureau Federation, National Chicken
Council, and National Pork Producers Council).
137. Id. at 495. In an important footnote in the opinion, the court stated:
Because we nd that the EPA lacks statutory authorization to re-
quire potential dischargers to apply for NPDES permits, we need
not consider whether the record here supports the EPA’s determi-
nation that Large CAFOs may reasonably be presumed to be such
potential dischargers. We hasten to note, however, that if Congress
were to amend the Clean Water Act to permit the imposition of a
duty-to-apply, we believe the EPA would have ample reason to con-
sider imposing this duty upon Large CAFOs. In our view, the EPA
has marshaled evidence suggesting that such a prophylactic measure
may be necessary to e ectively regulate water pollution from Large
CAFOs, given that Large CAFOs are important contributors to
water pollution and that they have, historically at least, improperly
tried to circumvent the permitting process ... (“since the incep-
tion of the NPDES permitting program in the 1970s, a relatively
small number of larger CAFOs has actually sought permits”); see
also Preamble to the Final Rule at 7180 (describing a rise in the ex-
cess manure nutrients produced by animal feeding operations); id.
at 7181 (detailing the ecological and human health impacts caused
by CAFO manure and wastewater), id. at 7237 (noting the pollut-
ants present in manure and other CAFO wastes and describing how
they contribute to the impairment of water quality).
We also note that the EPA has not argued that the administrative
record supports a regulatory presumption to the e ect that Large
CAFOs actually discharge. As such, we do not now consider wheth-
er, under the Clean Water Act as it currently exists, the EPA might
properly presume that Large CAFOs—or some subset thereof—ac-
tually discharge. See generally NLRB v. Curtin Matheson Scienti c,
Inc., 494 U.S. 775, 110 S. Ct. 1542, 108 L. Ed. 2d 801 (1990);
National Mining Ass’n v. Babbitt, 172 F.3d 906 (D.C. Cir. 1999).
Id. at 506 n.22.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
92022 ENVIRONMENTAL LAW REPORTER 52 ELR 10741
the rule’s “agricultural stormwater exemption” proper.
138
us, as long as a CAFO applies its waste by “appropriate”
waste management standards, water pollution occurring
from waste disposal areas as a result of precipitation-related
events are deemed allowable in the eyes of the law.
139
is
exemption, however, has had much broader implications.
In practice, even discharges of waste that occur from the
overapplication of waste on cropland, as opposed to a result
of runo from a rainfall event, have escaped regulation.
140
After EPA issued a revised version of the 2003 rule to
comply with the Waterkeeper holding, livestock agribusi-
ness industry groups again challenged that rule in 2011 in
the National Pork Producers Council case.
141
As a result, the
vast amount of water pollution caused by CAFOs has con-
tinued. is is because the court in the Pork Producers case
ultimately overturned another attempt by EPA to require a
large subset of CAFOs to apply for NPDES permits based
on “proposed” discharges (as opposed to creating a regula-
tory presumption).
e Pork Producers court held that EPA lacked the
authority to issue a regulation requiring CAFOs to apply
for NPDES permits based on “potential” or “proposed”
discharges because “there must be an actual discharge into
navigable waters to trigger the CWA’s requirements and
the EPA’s authority.”
142
is decision, and EPA’s rewrite
of its rules in response, then created a regulatory system
whereby only CAFOs found to be dischargers “in fact”
could be required to apply for NPDES permit coverage.
is greatly limited the universe of CAFOs regulated
under NPDES permits, as most CAFOs claim to be “zero-
discharge” facilities.
143
Given that most CAFOs cause water pollution through
the overapplication of waste on cropland and via runo ,
often occurring without regulatory oversight pursuant to
the “agricultural stormwater exemption,” water pollution
problems continue unabated. While the risk of causing
water pollution via land application area discharges is high,
the risk of getting caught discharging without a permit and
being subject to an enforcement action is low enough to
outweigh the bene ts of obtaining permit coverage.
144
Ty p -
ically, only after a number of catastrophic pollution events
or repeated documented pollution problems will EPA or an
authorized state require a CAFO to obtain NPDES per-
138. Id. at 509. is portion of the rule essentially allowed CAFOs to have
unpermitted “precipitation-related discharges,” referred to as “agricultural
stormwater discharges” in circumstances where CAFOs have otherwise
applied “manure, litter or process wastewater ... in accordance with site
speci c nutrient management practices that ensure appropriate agricultural
utilization.” Id.
139. Id.
140. Personal observations by Danielle Diamond, based on experience with
citizen-based CAFO water pollution monitoring and regulatory report-
ing programs.
141. National Pork Producers Council v. Environmental Prot. Agency, 635 F.3d
738, 41 ELR 20115 (5th Cir. 2011).
142. Id. at 751.
143. Personal observations by Danielle Diamond based on experience with
citizen-based CAFO water pollution monitoring and regulatory report-
ing programs.
144. See Preamble to the Final Rule, 68 Fed. Reg. 7176, 7196-97 (Feb. 12,
2003).
mit coverage.
145
is results in little regulatory oversight of
CAFOs and massive amounts of water pollution escaping
regulation under the federal CWA program.
146
Scant federal regulatory oversight of the CAFO indus-
try exists. Since a majority of CAFOs do not have NPDES
permits, EPA and the public have little recourse to deter-
mine where and how CAFOs intend to dispose of and
manage the immense amounts of waste they produce. is
also limits the ability of regulators and the public to mean-
ingfully weigh in on inadequate WMPs.
Correspondingly, the ability to enforce terms of site-
speci c WMPs is substantially weakened. In contrast, with
permitted facilities, WMPs would otherwise be incorpo-
rated into the NPDES permits, and therefore would be
enforceable regardless of whether a discharge occurs. In
essence, the federal CWA NPDES program for CAFOs
has become a reactionary regulatory program triggered
only after signi cant water pollution has occurred. To
summarize, a vast majority of CAFOs and their pollution
have essentially escaped meaningful oversight and regula-
tion by EPA under the CWA.
At this juncture, it should be noted that under the
CWA, states that are authorized to administer the federal
NPDES program are allowed and encouraged to enact
more stringent requirements than EPA’s federal regula-
tions. In principle, the CWA provides a oor, not a ceil-
ing, for environmental protection. Despite this, states have
largely followed suit in rolling back their corresponding
CAFO regulations that have been weakened at the federal
level.
147
Even states that had enacted more stringent laws
prior to the Pork Producers case have resisted implementing
those laws since the decision.
148
Implementation and enforcement of the federal CAA by
EPA against CAFOs have had similar outcomes.
149
Many
states and local units of government delegated the author-
ity to administer the CAA have not enforced its provisions
145. Personal observations by Danielle Diamond based on communications and
experience working with both state and federal regulatory entities.
146. e litigation challenging the program was led by some of the nation’s most
powerful agribusiness industry groups, including the National Pork Pro-
ducers Council, American Farm Bureau Federation, United Egg Producers,
National Chicken Council, U.S. Poultry & Egg Association, Dairy Business
Association, Inc., and the National Milk Producers Federation. See National
Pork Producers Council, 635 F.3d 738.
147. See, e.g., I. A. C tit. 35, §502.101(b) (West 2022) (“ e owner
or operator of a CAFO must seek coverage under an NPDES permit if the
CAFO discharges.”).
148. Personal observation based on interactions with state regulatory agencies
in West Virginia, Delaware, and Arizona. [Editor’s Note: is observation
was made by Danielle Diamond working in her capacity as a Director for
the Socially Responsible Agricultural Project.] See, e.g., Arizona Depart-
ment of Environmental Quality (ADEQ), Concentrated Animal Feeding
Operation Program (CAFO), https://www.azdeq.gov/node/2710 (last re-
vised Mar. 4, 2021) (stating that a “CAFO is not required to apply for
an AZPDES [Arizona Pollutant Discharge Elimination System] permit
unless the owner/operator informs ADEQ there will be a discharge of pol-
lutants to U.S. waters”).
149. CAFOs emit a number of pollutants regulated by the CAA, 42 U.S.C.
§§7401 et seq. See Association of Irritated Residents v. Environmental
Prot. Agency, 494 F.3d 1027, 1028 (D.C. Cir. 2007) (“ e pollutants—
ammonia, hydrogen sul de, particulate matter, and volatile organic com-
pounds—emanate from animal housing structures and areas used to store
and treat manure.”).
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
52 ELR 10742 ENVIRONMENTAL LAW REPORTER 92022
concerning CAFOs. is has been the case since EPA
entered into a consent agreement with the industrial live-
stock industry in 2005.
150
e CAFOs that entered into
the agreement committed to participating in an air emis-
sions study intended to help EPA develop air emissions
modeling factors to regulate CAFOs with more consisten-
cy.
151
All of the CAFOs that volunteered for the study were
supposed to receive some immunity from prosecution for
violating CAA permitting thresholds if they were found
to be emitting pollutants that exceeded allowable limits.
CAFOs that did not volunteer for the study were never
granted this immunity.
e study was completed years ago and is o cially
over. However, EPA has yet to nalize the air emissions
modeling standards for CAFOs. Given EPA’s delay, most
CAFOs, including those that never participated in the
study and those that were not even in existence at the time,
have resisted obtaining CAA permits, claiming that since
EPA has not nalized its emissions modeling factors, there
is too much uncertainty in measuring their emissions.
152
us, very few CAFOs are currently regulated under the
federal CAA, even though certain types and sizes of facili-
ties are known to be signi cant sources of air pollution and
should be regulated.
Notably, EPA’s 2005 consent agreement and nal order
also intended to collect air monitoring data to determine
compliance with the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA)
153
and the Emergency Planning and Community Right-to-
Know Act (EPCRA).
154
However, CAFOs releasing pollut-
ants in quantities su cient to trigger these laws have also
escaped regulation.
EPCRA has two primary purposes pertinent to this
discussion.
155
e rst involves compiling accurate, reli-
able information on the presence and release of toxic
chemicals and disseminating said information to the pub-
lic at the local level. e second is the “emergency plan-
ning” component, which uses the reported information
to formulate emergency response plans at the local level
to limit exposures and harm resulting from the accidental
150. Animal Feeding Operations Consent Agreement and Final Order; Notice,
70 Fed. Reg. 4958, 4959 (Jan. 31, 2005) [hereinafter Consent Agreement].
See Association of Irritated Residents, 494 F.3d at 1028:
An AFO that releases these pollutants in su cient quantities may
be required to report them under CERCLA and EPCRA, and may
be subject to various requirements under the Clean Air Act.... An
AFO emitting these pollutants in quantities below the statutory
thresholds, however, has no obligation under the Acts to obtain
permits or report its emissions.
151. Consent Agreement, 70 Fed. Reg. at 4959.
152. is is based on personal observations and communications with respon-
sible regulatory entities in various regions and states. [Editor’s Note: ese
observations and communications were made by Danielle Diamond in her
capacity as a Director for the Socially Responsible Agricultural Project.]
While it may be true that EPA has not published its estimations, there is a
wealth of available data to use to determine compliance or noncompliance
with the CAA; yet it has rarely, if ever, been enforced by EPA since the Con-
sent Agreement was entered into more than a decade ago.
153. 42 U.S.C. §§9601-9675, ELR S. CERCLA §§101-405.
154. 42 U.S.C. §§11001-11050, ELR S. EPCRA §§301-330.
155. Id.
release of toxic chemicals.
156
us, the primary purpose
of collecting and reporting such information is to inform
the public about possible exposures and assist in planning
emergency responses.
Again, while CAFOs that volunteered to participate in
the 2005 air study consent agreement were provided some
immunity from certain past and ongoing CAA, CER-
CLA, and EPCRA violations, their participation did not
give a blanket exemption from complying with these laws.
Further, CAFOs “that choose not to sign ... [the] Agree-
ment [were] subject to potential enforcement action by the
Federal Government for any CAA, CERCLA, or EPCRA
violations, as would any AFO [animal feeding operation]
that sign[ed] the Agreement but later drop[ped] out by
not complying with the terms of the Agreement.”
157
None-
theless, the industry has still largely avoided regulation
under federal public “right-to-know” laws. Examination
of the inconsistencies between environmental regulation
of CAFOs as compared to other highly regulated indus-
tries highlights that agricultural exceptionalism is deeply
embedded in the system.
Agricultural exceptionalism prevailed in March 2018
when President Donald Trump signed into law the Fair
Agricultural Reporting Method Act, or the FARM Act.
158
e FARM Act expressly exempts farms from reporting of
air emissions from animal waste under CERCLA §103.
159
is pattern of continued regulatory rollbacks of basic
information reporting has robbed the public of its right to
know about potential pollution exposures and has limited
opportunities for redress. is, coupled with the weaken-
ing of other related rules and the failure to implement and
enforce any preexisting environmental laws, demonstrates
the success of agribusiness in avoiding accountability for
pollution caused by industrial agriculture. One of the main
takeaways of this review of state and federal environmental
regulatory e orts is how the CAFO industry, in particular,
has avoided public transparency and proper monitoring
and accountability for its pollution.
When considering that the CWA, the CAA, and
EPCRA are only triggered by a small cohort of pollutants
that reach regulatory thresholds (of the many other types
and amounts of contaminants generated by CAFOs), the
magnitude of the problem becomes even more apparent. In
instances when the public pressures regulatory authorities
to enforce monitoring and reporting requirements for the
largest CAFOs, agribusiness groups respond accordingly.
For example, citizens from the small town of Tonopah,
Arizona, led an informal complaint with EPA requesting
enforcement of the CAA and EPCRA against a four mil-
lion-plus-head egg-laying operation associated with “Hick-
156. Id.
157. Consent Agreement, 70 Fed. Reg. 4958 (Jan. 31, 2005).
158. See Fair Agricultural Reporting Method Act, Pub. L. No. 115-141, §§1101-
1103, 132 Stat. 1147 (2018).
159. Amendment to Emergency Release Noti cation Regulations on Reporting
Exemption for Air Emissions From Animal Waste at Farms; Emergency
Planning and Community Right-to-Know Act, 84 Fed. Reg. 27533 (June
13, 2019).
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
92022 ENVIRONMENTAL LAW REPORTER 52 ELR 10743
man’s Family Farms” (this complaint pre-dated President
Trump’s FARM Act).
160
In response to the citizens’ complaints, EPA Region
9 initiated an action to investigate the facility,
161
but the
investigation was halted when the Trump Administration
took o ce. Shortly thereafter, local residents learned that
companies involved with the operation and the agribusi-
ness industry group, the United Egg Producers, met with
then-new EPA Administrator Scott Pruitt to “thank him
for e orts to help reduce unnecessary environmental regu-
latory burdens” and “to share the personal sense of what
the CERCLA-EPCRA reporting requirements will mean
for farmers, their businesses and families, and ... to request
his help.”
162
Despite the overwhelming evidence presented
to local, state, and federal regulatory agencies that the facil-
ity exceeded pollution emission thresholds to trigger regu-
lation under the CAA, no action has been taken. In fact,
the Maricopa County Air Quality Department opposed
requiring the facility to obtain a CAA permit for its volatile
organic compound (VOC) emissions, despite ample evi-
dence showing it was a major source of VOC pollution.
163
In summary, the agribusiness industry uses agricultural
exceptionalism to justify its forcible disposition of neigh-
boring property rights while evading federal and state
environmental regulations. As they formatively consoli-
date and dominate the marketplace through advantageous
corporate law, they simultaneously in uence environmen-
tal regulations, leading to a scarcity of public transparen-
cy.
164
e increased lack of transparency makes it di cult
to account for and to expose the extent of the impacts the
industry is having on the public, the environment, and
rural communities.
It is essential to note in this context that regulatory roll-
backs at the federal level trickle down to the state level.
While some states have their own environmental laws,
160. See Press Release, Socially Responsible Agriculture Project, Groups to EPA:
Investigate Hickman Egg Operations, Enforce Pollution Rules on Exploding
Arizona Poultry Industry (Oct. 8, 2015), https://sraproject.org/2015/10/
press-release-groups-to-epa-investigate-hickman-egg-operations-enforce-
pollution-rules-on-exploding-arizona-poultry-industry/; see also Ray Stern,
Critics Try to Shut Down Arizona’s Hickman’s Eggs Plant With EPA Com-
plaint, P. N T (Oct. 9, 2015), https://www.phoenixnewtimes.
com/news/critics-try-to-shut-down-arizonas-hickmans-eggs-plant-with-
epa-complaint-7731311. [Editor’s Note: Danielle Diamond worked with
the citizens’ group from Tonopah, Arizona, in her capacity as a Director
for the Socially Responsible Agriculture Project, providing technical and
environmental policy and advocacy support to help the community address
the negative impacts caused by the Hickman’s egg-laying CAFO.]
161. See EPA Investigation Letter to Glenn Hickman, President and Chief
Executive O cer, Hickman’s Egg Ranch, Pursuant to Section 114 of the
CAA (June 1, 2016), https://media.kjzz.org/s3fs-public/ResponsiveRecords
2016-008848%20(1).pdf?_ga=2.40399138.1273173212.1646612364-
1959672938.1646612364; see also Casey Kuhn, EPA Files Letter Question-
ing Hickman’s Family Farm Impact on Air Quality, KJZZ (Sept. 30, 2016),
https://fronterasdesk.org/content/373956/epa-files-letter-questioning-
hickmans-family-farm-impact-air-quality.
162. See Egg Producers Met With EPA Head, U E P (May 19,
2017), https://unitedegg.com/egg-producers-met-with-epa-head/.
163. See Decision and Final Order at 10, In re the Appeal of Hickman’s Egg
Ranch, Permit No. 140062, No. MCAPHB2016-01-PA (Maricopa Cnty.
Air Pollution Hearing Bd. Dec. 2, 2016).
164. M K. H ., T F S: C
I I—A S R F F A A
(2020).
these often mirror federal requirements. ere are very
few, if any, environmental protection laws that apply to
CAFOs, and very few regulatory agencies with the politi-
cal will to implement and/or enforce those laws. erefore,
it is easy for CAFOs to claim compliance. us, plainti s
have a high bar and are at a serious disadvantage when an
RTFL preempts a nuisance suit against a CAFO via a pre-
sumption that it cannot be a nuisance if it complies with
other applicable laws and regulations.
Arizona’s RTFL provides an excellent example.
165
Ari-
zona’s original RTFL provided protections against nui-
sance suits by creating a presumption that “[a]gricultural
operations conducted on farmland that are consistent with
good agricultural practices and established before sur-
rounding nonagricultural uses” are reasonable and not a
nuisance “unless the agricultural operation has a substan-
tial adverse e ect on the public health and safety.”
166
e
statute further creates the presumption that “[a]gricultural
operations undertaken in conformity with federal, state
and local laws and regulations are presumed to be good
agricultural practices and not adversely a ecting the pub-
lic health and safety.”
167
A 2021 amendment added, among
other provisions:
A city, town, county, [or] special taxing district ... may
not declare an agricultural operation conducted on farm-
land to be a nuisance if the agricultural operation’s prac-
tices are lawful, customary, reasonable, safe and necessary
to the agriculture industry as the practices pertain to an
agricultural operation’s practices as determined by the agri-
cultural best management practices committee established
by §49-457, the Arizona department of agriculture or the
department of environmental quality.
168
In practice, given that counties, the state Department
of Environmental Quality, and the federal EPA have been
complacent in enforcing existing environmental laws,
despite signi cant public pressure, these regulatory pre-
sumptions pose substantial hurdles for prospective plain-
ti s to overcome.
169
is is exacerbated by the fact that no
other local units of government, including cities, towns,
counties, and so forth, can declare an agricultural opera-
tion a nuisance if its practices comply with what the state’s
“agricultural best management practices committee”
deems acceptable. Ironically, the president and chief exec-
165. A. R. S. A. §3-112 (2021). It was recently amended in 2021,
likely due to nuisance cases being led against Hickman’s four million-plus
bird egg-laying operations located in Tonopah and Arlington in Maricopa
County. See, e.g., Nicholas A. Verderame, Plattner Verderame, P.C. Files
Nuisance Lawsuit Against Hickman Family Farm, L. (Sept.
20, 2017), https://blogs.lawyers.com/attorney/general-practice/plattner-
verderame-p-c- les-nuisance-lawsuit-against-hickman-family-farm-42675/.
166. A. R. S. A. §3-112(A).
167. Id. §3-112(B).
168. Id. §3-112(E) (emphasis added).
169. See, e.g., Elizabeth Stuart, Protesters Cry Fowl in Tussle With Maricopa County
Over Stinky Egg Ranch, P. N T (Sept. 22, 2016), https://www.
phoenixnewtimes.com/news/protesters-cry-fowl-in-tussle-with-maricopa-
county-over-stinky-egg-ranch-8668829.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
52 ELR 10744 ENVIRONMENTAL LAW REPORTER 92022
utive o cer of Hickman’s Family Farms is a committee
member.
170
e 2021 amendment also added:
e court may not award punitive damages for a nuisance
action unless the alleged nuisance emanated from an agri-
cultural operation that has been subject to a criminal con-
viction or a civil enforcement action taken by a state or
federal environmental or health regulatory agency pursu-
ant to a notice of violation for the conduct alleged to be
the source of the nuisance.
171
is new provision is interesting, particularly given
that both a nuisance action, as well as a citizen suit for
violations of EPCRA, were led against Hickman’s four
million-plus-head egg-laying operations in Arlington and
Tonopah, Arizona, several years ago.
172
Neither of these
cases are included in our statistical analyses because they
do not have dispositive rulings based on RTFL provi-
sions, but they illustrate how political dynamics play out
in the agribusiness context. e nuisance suit is still pend-
ing, whereas the EPCRA case is over.
173
Interestingly, the
EPCRA suit was a citizen suit (brought before the FARM
Act preempted it). Citizen suits can only proceed to court
after providing 60 days’ notice to the violator and the
responsible regulatory authority. en, if no corrective
action or diligent prosecution is undertaken within 60
days, the citizen suit can proceed. In this case, the suit pro-
ceeded without any action taken by a responsible agency.
Paradoxically, in the EPCRA case, the court found
undisputed evidence that Hickman’s released more than
100 pounds of ammonia per day into the ambient air dur-
ing the time period captured in the lawsuit. e court
speci cally stated that “[i]ndeed, Hickman’s own expert
found that the amount of ammonia generated at each facil-
ity likely exceeded 1500 pounds each day.”
174
e court also
found that Hickman’s failed to comply with the written
notice requirement under EPCRA for 592 days for the
Tonopah facility and 1,825 days for the Arlington facility.
e court then decided that these violations amounted to
just two failures to report a continuous emissions release.
175
e maximum penalty for a continuous emissions release
under EPCRA is $25,000. Following this rationale on the
170. See ADEQ Agricultural Best Management Practices (AgBMP) Commit-
tee, Meeting Minutes (July 28, 2021), https://static.azdeq.gov/aqd/agbmp/
mtg_minutes_210728.pdf.
171. A. R. S. A. §3-112(C)(3).
172. See Don’t Waste Ariz. Inc. v. Hickman’s Egg Ranch Inc., No. CV-16-03319-
PHX-GMS, 2018 WL 6629657 (D. Ariz. Dec. 19, 2018). See also Casey
Kuhn, Arizona Residents Challenge Local, National Regulations on Industrial
Farm Emissions, KJZZ (Dec. 22, 2017), https://kjzz.org/content/583947/
arizona-residents-challenge-local-national-regulations-industrial-farm-
emissions.
173. Don’t Waste Ariz. Inc. v. Hickman’s Egg Ranch Inc., No. CV-16-03319-
PHX-GMS, at 6 (D. Ariz. Nov. 2, 2018). e pending nuisance action was
not used in our statistical analyses since it is still pending.
174. Id.
175. Id. (citing CERCLA/EPCRA Administrative Reporting Exemption for Air
Releases of Hazardous Substances From Animal Waste at Farms, 73 Fed.
Reg. 76948, 76952 (Dec. 18, 2008)). is amount was notably less than
EPA guidance, which the court acknowledged could have led to penalties
up to $278,000. Id. at 5.
EPCRA stipulations, at a minimum, the penalties assessed
by the court should have been at least $50,000.
Plainti s pointed out the fact that Hickman’s failed to
take any action to come into compliance with EPCRA for
more than a year and a half, even after receiving a 60-day
notice letter, which should have triggered a harsher penal-
ty.
176
However, the court reasoned that because there was
evidence that the regulatory agency “was aware of Hick-
man’s emissions, but chose not to pursue further action,”
there was “a basis for concluding that Hickman was not
acting in bad faith.”
177
e court also noted that Hickman’s
“regularly coordinates with state regulators,” and that there
was no evidence that the company was “in violation of any
other state or federal environmental laws.”
178
In understanding the background and history of the
case, it is not di cult to infer that the reason no other
violations had been prosecuted was likely more related to
Hickman’s political in uence than the absence of viola-
tions.
179
Although Hickman’s failed to take any action to
comply with EPCRA, even after the plainti s provided the
company the required 60-day prior notice of their intent
to sue for the violations, the court elected to assess a ne
of only $1,500 for each facility—making the total ne
$3,000. Considering that Hickman’s is one of the largest
egg producers in the region and likely the country, the ne
assessed was unconscionably low. Fines and penalties under
federal environmental laws are intended to deter future vio-
lations. No doubt it cost less for Hickman’s to violate the
law than it did to come into compliance. is resulted in
176. Don’t Waste Ariz. Inc., 2018 WL 6629657, at *2:
On May 2, 2016, Plainti served written notice on Hickman’s of
its intent to le a citizen’s action under provisions of ... CERCLA
... 42 U.S.C. §§9601-9675 and EPCRA, based on Hickman’s al-
leged failure to submit noti cation under these statutes that report-
able quantities of hydrogen sul de and ammonia had been released
at the Arlington and Tonopah Facilities. Nearly ve months later,
Plainti led its Complaint.... e Complaint alleged that Hick-
man’s violated EPCRA because it failed to le the necessary reports
regarding the release of ammonia at the Arlington Facility and the
Tonopah Facility. Hickman’s led an answer denying liability on
October 21, 2016.
177. is rationale wholly goes against the purpose behind the citizen suit pro-
visions provided for under federal law, which are speci cally intended to
allow for citizens to prosecute environmental violations in instances when
regulatory agencies lack the resources or political will to act. To refer to
the state’s failure to prosecute as a favorable factor for the defendant in the
court’s assessment of guilt is in direct contradiction with the intent behind
the citizen suit provisions that provided the citizens the ability to prosecute
the violations in the rst place.
178. Indeed, this is true, as there had been a CAA investigation that had been ini-
tiated by EPA against Hickman’s Egg Ranch just prior to President Trump
entering o ce, which then halted after Glenn Hickman met with President
Trump’s newly appointed EPA Administrator (see supra notes 162 and 163).
What is also noteworthy is that hundreds of complaints had been led by
neighbors of the operation, but little to no action was taken by local and
state regulatory agencies. In 2015, well over 100 complaints had been led
with just the Maricopa County Air Quality Department alone and 65 had
been led with the state. Almost all were odor-related. Hickman’s was only
cited three times (once “for operating generators without a permit, once for
failing to control dust kicked up by trucks driving in and out of the facility
on an unpaved road, and once for improperly containing manure during
transport”). County Board Supervisor Clint Hickman states that “he recuses
himself when board business directly a ects the egg ranch.” However, “he
balked at” doing so for other air quality and environmental issues. Stuart,
supra note 169.
179. See id.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
92022 ENVIRONMENTAL LAW REPORTER 52 ELR 10745
virtually no incentive for Hickman’s, or any other CAFOs
in the county, to adhere to regulatory standards.
Aside from this inexplicable outcome, which did little to
deter Hickman’s from future violations, the 2021 amend-
ment to the state’s RTFL becomes even more intriguing.
Should the amended RTFL be applied in the pending
nuisance case against Hickman’s, the company has clearly
set itself up to avoid any punitive damages, as Hickman’s
should be able to demonstrate that the operation has not
been subject to “a criminal conviction or a civil enforce-
ment action taken by a state or federal environmental or
health regulatory agency pursuant to a notice of violation
for the conduct alleged to be the source of the nuisance.”
180
is easy defense for Hickman’s results from the failure
of regulatory agencies to act in spite of signi cant pollution
from Hickman’s facilities. A ected citizens led suit in the
EPCRA case, not the regulatory agencies. Surprisingly,
the court unjusti ably skirted consideration of imposing
any criminal nes against the operation, despite the aware-
ness of Hickman’s ongoing violations and the company’s
blatant failure to address them. is demonstrates how a
lack of enforcement by local, state, and federal regulatory
agencies bolsters RTFL protections, even where signi cant
pollution problems have been proven.
Hondo Creek Cattle Co. is another example. In this case,
a Texas court barred a nuisance suit led by 60 neighbors
against a large-scale 6,000-head cattle operation based on
the state’s one-year statute of repose.
181
is was despite
documented pollution problems. e state’s RTFL law
o ers protection from a nuisance action if an operation has
been “lawfully” operated for a year or more prior to when
the suit is brought.
182
While the Texas Natural Resource Conservation Com-
mission had taken action against the feedlot to address
the dust (or particulate matter) pollution problem, this
evidence was considered insu cient by the court to prove
the operation was being operated “unlawfully” for plain-
ti s to overcome the one-year statutory bar.
183
e court
prohibited the nuisance suit despite the facts of the case,
which included a regulatory agency action focused on dust
pollution caused by the facility, and without regard for an
equitable balance of the competing land uses.
184
e plain-
ti s were stripped of their ability to exert fundamental
property rights based upon a mere passage of 12 months
and despite clear evidence of noncompliance with environ-
mental standards.
To overcome the kinds of protections a orded to agri-
cultural operations, plainti s commonly must prove a
“substantial adverse e ect on public health and safety.”
185
180. A. R. S. A. §3-112 (2022) (emphasis added).
181. Barrera v. Hondo Creek Cattle Co., 132 S.W.3d 544, 546, 549 (Tex. App.
2004).
182. T. A. C A. §251.004(b) (Vernon 2021).
183. Barrera, 132 S.W.3d at 546, 549.
184. Id. at 547.
185. W. R. C A. §7.48.305(1) (2022) (emphasis added). For ex-
ample, Washington’s RTFL states:
(1) Notwithstanding any other provision of this chapter, agricul-
tural activities conducted on farmland and forest practices,
is can be an onerous burden to overcome because, as
discussed, industrial agriculture is largely exempted from
most environmental and public health and safety laws that
require monitoring and reporting. Given that these opera-
tions are exempt from these laws, providing the required
documentation to prove causation between the agricultural
operation’s activities and the health outcomes experienced
by surrounding neighbors can be challenging. is is espe-
cially di cult when state and federal agencies lack the
political will to implement and enforce the limited appli-
cable laws on the books.
E. RTFLs Incentivize Industrial Operations,
Leading to Inequitable Outcomes
By not providing explicit protection for small and medium
sized farms, RTFLs enable the largest of operations by
de ning them most commonly in terms of production.
186
Even if not explicitly stipulated in a state’s statute, RTFLs
can incentivize more-intense agricultural operations on
smaller parcels of land to the detriment of other surround-
ing farms and other less-intense land uses.
For example, in Marsh v. Sandstone North, LLC, an
Illinois court expressly acknowledged that the purpose of
the state’s RTFL was to “reduce the loss” of its “agricul-
tural resources” by protecting against nuisance suits that
are often “precipitated by the extension of nonagricultural
land uses into agricultural areas.”
187
However, the court still
favored a defendant’s 7,000-head hog operation, although
the surrounding landowner plainti s were also farmers.
e court reasoned that the statute applied to “any nui-
sance action” against any “agricultural operation,” even if
the action is brought by other farmers trying to protect
their farmland.
188
is case demonstrates how a state’s
RTFL can be utilized to safeguard large-scale industrial
livestock production facilities at the expense of other sur-
rounding farmers.
189
if consistent with good agricultural and forest practices and
established prior to surrounding nonagricultural and nonfor-
estry activities, are presumed to be reasonable and shall not be
found to constitute a nuisance unless the activity or practice
has a substantial adverse e ect on public health and safety.
(2) Agricultural activities and forest practices undertaken in con-
formity with all applicable laws and rules are presumed to be
good agricultural and forest practices not adversely a ecting
the public health and safety for purposes of this section and
RCW 7.48.300.
Id. §7.48.305.
186. For example, Nebraska only o ers protections for large-scale commercial
operations.
See N. R. S. §2-4403 (2022).
187. 179 N.E.3d 402, 422-23 (Ill. App. Ct. 2020), appeal denied, 163 N.E.3d
745 (Ill. 2021).
188. e court disregarded the lower court’s interpretation of the Act that it was
not intended to pit agricultural interests against each other. Id.
189. Another example is Michigan’s RTFL, which speci es that a farming opera-
tion cannot be found to be a nuisance if it is commercial in nature and con-
forms to GAAMPs. See M. C. L A. §286.472 (West 2022)
(GAAMPS are agricultural and management practices, including manure
management, developed annually by the Michigan commission of agricul-
ture). See id. §286.473, Sec.3(1). It expressly preempts local laws, ordinanc-
es, or resolutions that con ict with the RTFA or GAAMPs, and provides
attorney fees and costs to defending farm operations that prevail in nuisance
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
52 ELR 10746 ENVIRONMENTAL LAW REPORTER 92022
Due to the extreme consolidation and concentration of
livestock production onto small parcels of land via CAFOs,
farmland owners can reap economic bene ts from inten-
sifying livestock production while selling o farmland
acreage—so long as they do not live proximate. In Laux v.
Chopin Land Associates Inc., a family farm operation con-
sisting of approximately 123 acres sold approximately 113
acres to a residential developer.
190
e remaining 10 acres
were controlled by the family’s eldest sons, who converted
the property to a concentrated hog operation. Here, a fam-
ily farming operation generated a nancial bene t from the
sale of a majority of its farmland to a residential developer
while still utilizing a small fraction of the original farm-
land acreage for a more-intense industrial agricultural use.
When the proposed residential development began to
take shape—a development anticipated at the time of the
land sale—the hog operation was able to rely on Indi-
ana’s RTFL to expand its operation, adversely impacting
the half-converted and otherwise useless residential land.
us, although the nuisance action resulted from a change
in the land use of the plainti ’s land, the agricultural oper-
ation’s land sale of its own land for residential development
was the reason that any form of residential development
was allowed to happen in the rst place. is illuminates
how RTFLs can encourage the conversion of farmland for
residential and other uses while consecutively providing
protections for more-intense agricultural uses on smaller
parcels of land.
In Rancho Viejo, LLC v. Tres Amigos Viejos, LLC, the
California Court of Appeals highlights similar trends.
191
Here, a family ranch sold a portion of its property to a
residential developer, but retained a portion of the property
that contained an avocado and orange-growing operation
uphill from the proposed development. e family subse-
quently sold the upper property to the defendant’s avocado
operation. e defendant’s grove was irrigated by pump-
ing water uphill from the nearby river regularly. However,
because the defendant could not rely on a municipal water
source, it was forced to apply more water than would ordi-
narily be necessary to dilute the water’s salinity.
After the plainti discovered that the irrigation was
causing damage to and destabilizing the slope above his
developing subdivision, the plainti requested that the
defendant implement a water control system to prevent
excess runo . e defendant refused. e court denied
the plainti ’s subsequent nuisance lawsuit and held that
California’s RTFL precluded the plainti from claiming a
trespass theory of liability.
is case might appear to have protected agricultural
land, because the orchard was able to continue its irriga-
tion practices unchanged in the face of a nuisance lawsuit.
cases. See id. §§286.474(6), 286.473b. is system has essentially had a
chilling e ect on the ability of local communities and aggrieved citizens to
address negative impacts they are experiencing from CAFOs in their areas.
190. 615 N.E.2d 902, 904 (Ind. App. 3d Dist. 1993). is case was not included
in our statistical analyses, but is helpful in further understanding how RT-
FLs can create the reverse of what they were originally intended for.
191. 123 Cal. Rptr. 2d 479 (Cal. Ct. App. 2002).
However, it is important to note that the avocado opera-
tion was protected from having to correct the problems
it was creating for the neighboring residential develop-
ment, which would not have existed but for the land sale
of part of the farm to the developer. In essence, there was
an economic bene t in selling o a portion of the farm for
residential land use, but no corresponding duty to operate
responsibly and in a compatible manner.
is was the case even though alternative water manage-
ment protocols could have addressed the problem. Clearly,
the avocado farm was a preexisting land use, which gave it
a priority interest over the residential development. How-
ever, if not for the RTFL, the court may have still enjoined
a bad actor to utilize other available alternative water man-
agement procedures. is could have remedied negligent
nuisance causing runo while still honoring the priority
interest in maintaining the farming operation.
What these cases demonstrate is that RTFLs can
incentivize more-intense industrial agricultural uses
on smaller parcels of farmland while disincentivizing
innovations to address environmental harms resulting
from more-intense farming practices. ese trends have
disrupted the equitable balancing of rights previously
granted through traditional common-law nuisance law-
suits. Pre-RTFL courts could balance case-speci c facts
and competing interests to fashion equitable outcomes.
192
In fact, this suggests that agricultural exceptionalism, if
maintaining a distributive focus, could be reconcilable
with environmental justice aims.
192. For example, in Dill v. Excel Packing Co., 331 P.2d 539, 540-42 (Kan.
1958), various suburban property owners brought a nuisance action
against a neighboring cattle feedlot that pre-dated the suburban develop-
ment. e plainti s had bought homes in a developing subdivision while
the neighboring feedlot held only 27 cattle. e feedlot then expanded to
reach a total number of 840 cattle. e plainti s alleged that the cattle
feedlot’s dramatic change in size had eviscerated their ability to use and
enjoy their property by destroying the value of their homes, depleting the
water supply, and generating fowl and o ensive waste odors. Id. at 541. Im-
portantly, the court noted that livestock in any amount in a residential area
constituted a nuisance. Id. at 548. However, it was also pointed out that
the plainti s lived in an “agriculture area” that had existed for more than
30 years. Ultimately, the court in Dill held that because the plainti s chose
to live in an agricultural area, they could not complain about adjacent agri-
cultural activities or the resulting depreciation in the value of their homes.
us, without the existence of an RTFL, the court equitably assessed the
interests at stake and opted to protect the large livestock operation from the
e ects of urban encroachment.
Similarly, in another pre-RTFL case, Gerrish v. Wishbone Farm of New
Hampshire, Inc., 108 N.H. 237, 231 A.2d 622 (N.H. 1967), the defendant
poultry operation invested $600,000 in a waste disposal system of various
open-air manure lagoons causing extensive odors on neighboring proper-
ties. Id. at 239. However, the defendant admitted that their geographic
location was not suitable for open-air manure waste disposal because the
parcel lacked the adequate land to maintain the lagoons’ size. Id. at 239-40.
Nevertheless, the defendant argued that because the disposal system was
so expensive, they should not be enjoined from operating. Id. at 239. e
court held that the defendant was to cease using the waste disposal system.
Id. at 240. e key here is that the court noted that defendant could apply
to the trial court by an appropriate motion if they wished to extend the
e ective date of the court’s injunction to test other remedial technology po-
tentially available to x the problem. Id. at 240. us, the equitable balance
of land use interests encouraged better environmental practices because as
long as an agriculture operation is taking steps to mitigate nuisance-causing
activities, the operation could avoid a doomsday injunction later feared by
RTFL authors.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
92022 ENVIRONMENTAL LAW REPORTER 52 ELR 10747
is begs the question as to whether actions brought
pursuant to traditional common-law nuisance claims were
not already e ective mechanisms for courts to equitably
balance the rights of landowners in rural areas while still
protecting farmland and agriculture without the aid of
RTFLs.
193
Logic would suggest courts are and always have
been capable of fashioning equitable remedies without
being required to follow statutory laws that e ectually take
away the rights of rural people.
194
Justice and equity can-
not be served when laws strip away the ability of people to
protect themselves, particularly those who are already dis-
advantaged by their socioeconomic standing or geography,
to provide cover for a harmful polluting industry.
VI. Conclusion
RTFLs have paved the way for the rapid expansion of
large-scale, industrialized, corporate-owned agriculture by
reducing the property rights attuned to more distributive
ends vis-à-vis trespass and nuisance claims. Firms, such
as business rms and CAFOs, bene t disproportionately
from RTFLs. e development of RTFL protections across
the country coincided with increased market consolidation
of our food system and intensi ed industrial agricultural
production by corporate and increasingly nancialized
international agribusinesses. Concerns over the loss of
farms and farmland inspired enactment of these, which
did not necessarily contemplate the negative social, eco-
nomic, and environmental consequences of an increasingly
industrialized food system. And while the environmental
justice movement has made strides since its inception, the
rural United States has not been an area of focus.
195
Despite their original intent, RTFLs have not prevented
the loss of farmland. Since the early 1980s, when most were
enacted, the number of farms has declined by nearly 10%,
and there has been a loss of almost 100 million acres of
farmland.
196
Yet, through the tenets of agricultural excep-
tionalism, these laws have ourished to the detriment of
small and more regional property holders. While RTFLs
clearly have local consequences, these consequences also
have global implications.
193. For example, in Patz v. Farmegg Products Inc., 196 N.W.2d 557 (Iowa 1972),
the Iowa Supreme Court a rmed a trial court ruling that the defendant’s
large chicken operation constituted a nuisance because it was located less
than 1,000 feet from the plainti ’s preexisting farmstead. e court consid-
ered the priority of the location, the nature of the neighborhood, and the
harms complained of in its decision. Id. at 561. It reasoned that the defen-
dants had intentionally planned their chicken operation with knowledge of
the neighboring farmstead, and the defendant caused the noxious odors by
operating it without proper care. erefore, the defendant could not know-
ingly establish a bothersome nuisance adjacent to preexisting landowners,
even if the character of the locality was primarily rural. Id. Here, the court
balanced the rights of each party and, considering the facts, had the ability
to protect the preexisting residents and the operation of their farmstead.
194. Based on a cursory review of pre-RTFL cases, including those discussed in
the footnotes above, courts were able to provide proper remedies that bal-
anced competing interests based on the facts of each case, regardless of the
size and intensity of the agricultural operation in question.
195. See Lisa R. Pruitt, Legal Deserts: A Multi-State Perspective of Rural Access to
Justice, 13 H. L. P’ R. 15 (2018).
196. See id. at 67. See also 2012 E C Y, supra note 42; 2017
E C Y, supra note 43.
e pollution caused by industrial agriculture at the
local level feeds into the global and systemic-level climate
emergency,
197
along with direct human health implications
for frontline populations.
198
While greenhouse gas emis-
sions from other industrial sectors have decreased since
the 1990s due to e orts by the United States to reach its
Paris Climate Agreement commitments, recent data show
an overall increase caused by industrial agriculture and
CAFOs of at least 10%.
199
is provides even more justi -
cation for the environmental justice movement to focus its
attention on rural environmental injustices.
RTFLs have become state-sanctioned mechanisms
enabling industrial agribusiness entities to pollute and
escape accountability at the expense of rural people and
the environment. is is not a sound policy approach, nor
does it respect the rights and autonomy of small to medium
sized farmers and rural communities. Despite this, RTFLs
continue to be widely supported. During the spring 2022
legislative session, new legislation and proposed state con-
stitutional amendments have been led in at least seven
states to strengthen RTFL protections further.
200
197. Ben Lilliston, Latest Agriculture Emissions Data Show Rise of Factory Farms,
I. A. T P’, (Mar. 26, 2019), https://www.iatp.org/
blog/201904/latest-agriculture-emissions-data-show-rise-factory-farms:
New data from the U.S. Environmental Protection Agency (EPA)
shows a steady increase in agriculture-related greenhouse gas emis-
sions, much of it linked to industrial systems of crop production
and the rise of factory farm systems of animal production. . . .
While emissions in many sectors are declining, those from the ag-
riculture sector have increased more than 10 percent since 1990,
according to the EPA.
is percentage does not include on-farm energy and fuel use, shifts in
cropland, the production of ammonia fertilizer, or emissions caused by the
transport of food and agricultural goods or the processing and waste.
198. Joe Wertz, How Big Farms Got a Government Pass on Air Pollution, C.
P. I (Sept. 16, 2020), https://publicintegrity.org/environment/
factory-farming-air-pollution-pass-cafos/. See also Nina G.G. Domingo et
al., Air Quality-Related Health Damages of Food, 118 PNAS e2013637118
(2021).
199. Lilliston, supra note 197.
200. See, e.g., H.B. 1150, 2021/2022 Reg. Sess. (Ga. 2022) (amending Freedom
to Farm Act, Georgia Code §41-1-7), available at https://www.legis.ga.gov/
legislation/61581; S.J.R. 2, Gen. Assemb., 2022 Sess. (Ind. 2022) (adding a
provision to the Constitution of Indiana), available at http://iga.in.gov/leg-
islative/2022/resolutions/senate/joint/2; H.B. 578, 2022 Reg. Sess. (Miss.
2022) (creating a Mississippi On-Farm Sales and Food Freedom Act), avail-
able at http://billstatus.ls.state.ms.us/2022/pdf/history/HB/HB0578.xml;
S. 268, Gen. Assemb., 2021/2022 Sess. (Vt. 2022) (amending the state’s
RTFL), available at https://legislature.vermont.gov/Documents/2022/
Docs/BILLS/S-0268/S-0268%20As%20Introduced.pdf; S.J.R. 6, 2022
Reg. Sess. (W. Va. 2022) (adding a new section to Article III of the West
Virginia Constitution recognizing the right of citizens to farm and ranch),
available at https://www.wvlegislature.gov/Bill_Status/Resolution_History.
cfm?year=2022&sessiontype=RS&input4=6&billtype=jr&houseorig=s&b
type=res; S.J.R. 4, 2022 Reg. Sess. (W. Va. 2022) (amending Article III
of the West Virginia Constitution relating to the right of farmers and ag-
ricultural producers to engage in modern agricultural practices), available
at https://www.wvlegislature.gov/Bill_Status/Resolution_History.cfm?year
=2022&sessiontype=RS&input4=4&billtype=jr&houseorig=s&btype=res;
S.B. 126, 2022 Reg. Sess. (W. Va. 2022) (amending West Virginia Code
§19-19-2 and §19-19-7 relating to the right to farm), available at https://
www.wvlegislature.gov/Bill_Status/bills_history.cfm?INPUT=126&year=2
022&sessiontype=RS; H.B. 253 1st Sub., 2022 Gen. Sess. (Utah 2022) (en-
acting Utah Code §4-1-112 and repealing §17-27a-1101 to rescind coun-
ty authority to adopt land use ordinances for large CAFOs), available at
https://le.utah.gov/~2022/bills/hbillint/HB0253S01.pdf; S.B. 2622, 2022
Gen. Assemb. (Tenn. 2022) (amending Tennessee Code Annotated Title 5,
Title 6, Title 7, Title 43, Title 44, and Title 53; categorizing dairy creamer-
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
52 ELR 10748 ENVIRONMENTAL LAW REPORTER 92022
RTFLs emblemize the injustices imposed by agricultural
exceptionalism. ey create barriers for distributive agri-
culture, which ultimately moves us further away from rec-
onciling rural environmental harms. As opposed to being
stripped away, the private-property rights of rural people
should be protected to advance environmental justice.
We wish to draw attention to the wisdom of the com-
mon-law nuisance doctrine, having evolved for nearly
a half-century before RTFLs were enacted. In analyzing
ies, bottling plants, and certain slaughterhouses as agriculture operations
that are not subject to local zoning requirements when located on agricul-
tural land), available at https://wapp.capitol.tn.gov/apps/BillInfo/Default.
aspx?BillNumber=SB2622.
agricultural nuisance case outcomes from both before and
after the enactment of RTFLs, a plausible policy solution
emerges—that states should consider rescinding RTFLs
and allow common-law doctrine to continue to evolve. e
original impetus behind agricultural exceptionalism—to
safeguard the food system through distributed and vibrant
farms—could be reconciled with environmental justice by
repealing RTFLs.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
