"Keep Makin’ Bacon” Indiana’s Right to Farm Act Statute Upheld As Constitutional

Posted on January 11, 2021 by Chris Braun

Indiana, like every other State, has adopted a Right to Farm Act to “reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.” Indiana Code § 32-30-6-9(b) (“RTFA”). The RTFA limits the availability of state-law nuisance actions with respect to agricultural operations.

The Plaintiffs’ residential properties are located in rural Indiana near land owned by a family of second- and third-generation farmers who decided to convert land that had been historically used to grow row crops to a state-of-the art concentrated animal feeding operation (“CAFO”) for raising 8,000 hogs. The farmers obtained the necessary zoning changes, construction and operation permits, and environmental permits to build two 33,500 square foot buildings with ventilation fans, slatted floors and concrete pits to store liquid waste and began operations in October 2013. Two years later, the Plaintiffs commenced the action alleging claims of nuisance, trespass, personal injuries and property damage based on the odors and airborne emissions produced by the hog-farming operation.

The lawsuit was dismissed on summary judgment, with the dismissal upheld on appeal. The lawsuit included several constitutional challenges to Indiana’s RTFA. The Indiana courts held that the Plaintiffs’ nuisance claims were precluded by the RTFA, ruled that their trespass claims should be treated as nuisance claims as a matter of state law because they were essentially a repackaged version of the nuisance claims, and determined that the application of the RTFA did not effect a regulatory taking of the Plaintiffs’ properties. 

As the Indiana Court of Appeals held, Indiana’s legislature has declared that the Indiana RTFA is vitally important to Indiana’s agricultural economy and the protection of farmers’ rights related to livestock agriculture and the use of their farmland. The Court held that the RTFA declares that it is the State’s policy “to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products” and finds that “when nonagricultural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits,” which discourage “investments in farm improvements.”  Indiana Code § 32-30-6-9(b). The purpose of the law is “to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.” The Court of Appeals also recognized that the RTFA is designed to “protect the rights of farmers to choose among all generally accepted farming and livestock production practices, including the use of ever-changing technology.”

During the litigation, the Plaintiffs’ asserted numerous constitutional challenges to the RTFA, including claims that the Act violated the Indiana and/or U.S. Constitutions by: (a) providing certain privileges and protections only to farmers over their non-farming neighbors in violation of the Privileges and Immunities Clause of the Indiana Constitution; (b) precluding the assertion of certain claims contrary to the Open Courts clause of the Indiana Constitution; and (c) violating the Takings Clause of the Fifth Amendment. The trial court, the Indiana Court of Appeals and the Indiana Supreme Court each considered and rejected the Plaintiffs’ various constitutional challenges to the RTFA.

On February 20, 2020, the Indiana Supreme Court voted to uphold the Court of Appeals opinion and denied the Plaintiffs’ petition for transfer.

The Plaintiffs’ filed a petition for certiorari with the U.S. Supreme Court. The question presented by the Plaintiffs’ petition was whether the application of Indiana’s RTFA to preclude Plaintiffs’ nuisance claims constituted a regulatory taking without compensation violative of the federal Constitution.

The Plaintiffs argued that the Supreme Court should take the case because the RTFA allegedly violated the Takings Clause by providing the Defendants with complete immunity from nuisance and trespass claims and that there was a conflict among lower courts regarding various states’ right to farm statutes. The Defendants responded that Indiana’s RTFA does not provide complete immunity from nuisance or trespass liability. Nor is there a conflict among various States and lower courts regarding right to farm statutes across the U.S.

The Plaintiffs’ litigation came to an end on October 5, 2020, when the U.S. Supreme Court denied the Plaintiffs ’ petition. As a result, Indiana farmers are now permitted to modernize their farming operations and change the use of their farmland while being protected from nuisance lawsuits by neighbors who disagree. Janet L. Himsel, et al. v. 4/9 Livestock, LLC, et al., 122 N.E. 2d 935 (Ind. App. 2019), Petition to Transfer Denied (Ind. S. Ct., Feb. 20, 2020), Cert. Denied (U.S. S. Ct.., Oct. 5, 2020, page 27).

Agriculture is an important part of Indiana’s economy as it contributes approximately $31 billion to the State, with $3.55 billion of that revenue coming from animal and animal product production.  More than 85% of the livestock raised in Indiana are raised in confined feeding operations.  There are more than 56,000 farming operations in Indiana and 96% of those farms are family owned and operated.  This case was important because the Indiana courts recognized the Indiana Legislature’s statutory framework to protect farmers who are not negligent in operating their farms while rejecting the various constitutional challenges to the RTFA, including equal protection, due process and taking arguments.  This case provides the necessary assurances to Indiana’s farmers and the agricultural community that they have the right to choose how best to modernize their farming and livestock operations.  In addition, Indiana’s RTFA and this case provide a helpful guide to other states that are interested in updating their own RTFA statutes to ensure a proper balance is struck between the needs of the agricultural community and neighboring property owners when dealing with such land use issues.   

CAFO Odors and the Ghost of William Aldred

Posted on July 10, 2018 by Susan Cooke

The number and size of concentrated animal feeding operations (CAFOs) have increased in recent years.  These operations keep large numbers of animals in a confined space and provide them with feed from offsite sources prior to their slaughter.  While generally viewed as cost efficient, CAFOs raise concerns about animal welfare and about their environmental impacts and effect on the health and quality of life for those living or working nearby.  Such concerns include the foul odors associated with the substantial quantities of animal waste that are generated, especially where such waste is discharged into pits and then flushed into open air lagoons.  The sludge in those lagoons sinks to the bottom and is periodically removed for land application and the liquid waste remaining at the top is sprayed as fertilizer onto adjacent fields.

The anaerobic reaction that occurs during pit and lagoon storage of the waste over an extended time period is the primary generator of such odor, the primary constituents being ammonia and hydrogen sulfide.  Anaerobic digesters and other technologies can be employed to reduce odor generation, with some also producing gases for fuel.  However, the costs of installing and operating such equipment can be substantial, and there are no specific requirements at the federal level mandating odor control or limiting ammonia or hydrogen sulfide emissions from CAFO operations.  Indeed, even the reporting of animal waste air emissions under the federal Superfund law and under EPCRA (as interpreted by EPA) is precluded under the Fair Agricultural Reporting Method (FARM) Act signed into law by Congress in March 2018

While there is little regulation at the federal level, some states have imposed limits on hydrogen sulfide.  For example, California has a one hour average standard and Minnesota has a 30 minute standard for H2S.  In addition, a few states have instituted odor standards covering some CAFOs, including Colorado’s odor standard, which is based on an odor dilution factor, for swine CAFOs above a certain size (i.e., the odor must be eliminated by a specified amount of dilution).  While most local ordinances covering odors enjoin nuisances in general, some have adopted a dilution factor standard that is generally applicable, such as the ordinance adopted in Denver, Colorado and that adopted in South St. Paul, Minnesota.

Even where CAFOs are singled out for specific regulation by state, the dilution factor standard is not often used, probably because it is in essence subjective in nature and thus quite different from most environmental emission standards.  Instead, states have generally adopted a management plan approach coupled with registration and periodic inspections.  For example, the environmental regulations covering odor control at CAFOs in North Carolina, which has a number of swine CAFOs in the southeastern portion of the state, do not include a specific standard covering odor.  Instead, those regulations impose setback requirements and provide for state agency inspections, and they empower that agency to require preparation and modification of a best management plan if it determines that odor control is necessary.

Given the absence of a specific standard for judging CAFO emissions, some neighbors of CAFO operations have brought tort suits for nuisance to address odor concerns.  In one case decided this past April, a jury awarded $50 million in compensatory and punitive damages to 10 neighbors of a North Carolina hog farm.  The plaintiffs claimed that the truck noise associated with farm operations and the odor associated with lagoon storage of waste from its 4700 hogs and the spraying of lagoon liquid onto nearby fields created a nuisance.

Although the federal court reduced recovery to $3.25 million under punitive damage limits imposed under the North Carolina Right to Farm Law, agribusiness interests raised strong concerns about the damage award and within weeks the North Carolina legislature had passed amendments to the state Right to Farm Law to further restrict tort recovery for alleged nuisances from agricultural and forestry operations.  Although those amendments (in Senate Bill 711) were vetoed by Governor Roy Cooper on June 25, the veto was overridden by both houses before their month-end adjournment.

The amendments, which are similar to statutory language already enacted in Missouri for facilities engaged in crop and animal production, would limit compensation to property located within one half mile of the alleged source of a nuisance at an agricultural or forestry operation.  In addition, the suit would have to be filed within one year of the operation’s establishment or of a fundamental change (which wouldn’t include, among other things, a change in ownership or size) to that operation, with compensatory damages limited to a reduction in fair market value of the plaintiff’s property for a permanent nuisance and to diminution in fair rental value for a temporary nuisance.  While punitive damages are already capped at a specified multiple of compensatory damages, the amendments would limit them to instances where, during the previous three years, the operation had been the subject of a criminal conviction or civil enforcement action or of regulatory action taken by the state or federal government pursuant to a notice of violation.

Such limits on monetary recovery for nuisance may encourage plaintiffs to seek injunctive relief to abate odors from CAFO operations.  And tort suits for nuisance animal odors have a long history, as evidenced by William Aldred’s Case dating back to 1610 where the Court of King’s Bench held that Mr. Aldred, whose house was situated within 30 feet of a later constructed hog sty, had a right to obtain abatement of the foul odor emanating from that hog sty.

In recent years the injunction remedy in a nuisance action has sometimes been disfavored, as illustrated in the Boomer v. Atlantic Cement decision where monetary damages were awarded rather than injunctive relief for operation of a cement plant.  There the court weighed the (lower) cost of compensatory damages versus the (significantly higher) cost associated with installing abatement equipment or requiring plant shutdown.  However, it now appears that determining “entitlements” under an economic efficiency analysis, such as that described in the oft-cited Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, is undergoing more critical academic scrutiny.

Moreover, animal welfare advocates, as well as those concerned about environmental justice or greenhouse gas emissions, and perhaps even property rights advocates, may add their own voices in support of the injunctive remedy option for stopping or curtailing CAFO operations.  If so, then the right of a landowner to quiet (and unscented) enjoyment of his or her property through an injunction, as enunciated by the King’s Bench more than 400 years ago, may prove to be the most effective remedy for those seeking to curtail CAFO odor emissions.

EPA Tries Again to Keep Toxic Pollution Information from Communities

Posted on November 21, 2017 by Peter Lehner

Your Thanksgiving turkey, like most meat in America, was probably produced at an industrial animal facility in rural America. These facilities hold thousands or tens of thousands of animals in a confined space and can produce as much waste as a mid-sized city. They are prodigious factories that generate dangerous air and water pollution, yet unlike other factories, they’ve been given a free pass from reporting their toxic emissions.

Community and environmental groups have been pushing the Environmental Protection Agency to address pollution from animal feedlots for decades, and recent court decisions seemed to indicate that the veil of secrecy surrounding these operations might finally be tugged back. However, instead of following the court’s latest ruling to ensure that industrial animal factories report toxic emissions, the EPA is proposing a sweeping exemption that would shield thousands of livestock facilities from reporting. 

This move represents the third attempt by the EPA to block these reporting requirements. Under President George W. Bush, the EPA suspended them in 2005, claiming the issue was being studied, then pushed through an illegal exemption in 2008, which was rejected in court.  And now, Scott Pruitt’s EPA is making a fresh attempt to make the exemption even broader. It’s a move that favors industry over the health of affected communities. The EPA itself has rejected this exemption, a proposal favored by industry, three times before.

While polluters are benefiting from the EPA’s dereliction of duty, people who live near these facilities continue to suffer. “During the summer we can’t keep our doors or windows open because of the stench,” writes Iowa farmer Rosemary Partridge, who lives near 30,000 hogs concentrated in factories near her farm. Partridge has worked with Earthjustice since 2015 to fight for more oversight of industrial animal agriculture. “Sometimes it gets so bad [my husband and I] get headaches and feel nauseous.”

Toxic gases from animal waste, which is often stored in open pits and sprayed over fields, include substances like hydrogen sulfide and ammonia that can cause nausea, headaches and chronic lung disease. Children in nearby schools have a heightened risk of asthma. Dairy farm workers have fallen into manure pits and drowned after being overcome by toxic fumes.

Feedlots tend to be clustered in low-income communities, and in some parts of the country, especially the Southeast, in communities of color. Earthjustice and others brought a civil rights complaint in 2014, which EPA found to have merit, over the concentration of hog farms in North Carolina.

A recent stinging report from the EPA’s independent Office of the Inspector General recommended that the EPA stop shielding polluters. Yet the agency still took a third, wild swing at stopping pollution reporting requirements for industrial animal agriculture. It’s time for the EPA to put down the bat and take the field for healthy communities.

The Poop on (and Unfortunately Surrounding) the Cow Palace

Posted on February 23, 2015 by Brian Rosenthal

The exception from solid waste regulations for agricultural waste applied as fertilizer is a safe harbor that has boundaries based on use. In Community Ass’n for Restoration of the Environment, Inc. v. Cow Palace, LLC (E.D. Wa, 2015), facts evidencing over applied fertilizer and leaking storage lagoons, recently led a district court to a finding of possible imminent peril to public health, welfare or the environment under RCRA.

The court’s partial framing of the legal questions was telling: 

(1) [W]hether the manure at the Dairy, when over-applied to land, stored in lagoons that leak, and managed on unlined, permeable soil surfaces, constitutes the “handling, storage, treatment, transportation, or disposal of . . . solid waste....” 

Defendant’s useful product counterargument did not overcome its waste handling practices, which were deemed deficient by the court. The case is an excellent primer for the storage and handling of agricultural waste and the parameters for waste handling by large concentrated animal feeding operations (CAFOS). The proper methods and conditions for land applying the waste as fertilizer are also discussed.

Many large farm operations properly manage waste and its use as land applied fertilizer. In Cow Palace, the court reviewed federal law and the overlay of required nutrient management best practice plans applicable to Washington farms by state regulation. Natural Resource Conservation Service lagoon storage rules and RCRA open dump rules were also addressed.