Posted on May 14, 2021 by Susan M. Cooke
According to some critics, recent amendments to Florida’s Right-to-Farm law are intended to defeat class action litigation brought against the economically important sugar industry. The lawsuit involves pre-harvest burns of sugar cane fields south and east of Lake Okeechobee which are visible from satellites and generate particulate matter and PAHs that have raised health concerns. The annual burns occur from October to April and are subject to permits issued by the Florida Fire Service that critics claim cover such burns even when the wind blows in the direction of nearby residents.
Last year two claims in the class action lawsuit survived a motion to dismiss, and this spring the Florida Right-to Farm law was amended to significantly strengthen the law’s provisions. These amendments could have a detrimental impact on the litigation which was specifically mentioned in the legislative staff analysis.
In recent years class action tort suits seeking damages against large scale agricultural operations have met with only limited success because of Right-to-Farm law restrictions imposed upon nuisance and similar tort claims. Even where plaintiffs prevail, the state law may be amended to stymy future litigation. As discussed in my earlier blog, this occurred in North Carolina after class action plaintiffs living near a concentrated animal feeding operation (CAFO) for swine won substantial punitive damages.
Those amendments to the North Carolina Right-to-Farm law were upheld by a lower state court last December. The plaintiffs who claimed, among other things, that they violated property rights, due process, and the right to a jury trial under the state constitution have now appealed the decision. However, similar constitutional challenges were rejected by Indiana’s highest court last year in another case involving hog farm operations.
Right-to-Farm laws, which exist in all 50 states, originated in the 1970s to protect existing farms from nuisance claims brought by new residents. In addition to restricting such tort claims, they usually limit or preclude local zoning provisions that would restrict farming operations. While Right-to-Farm laws vary from state to state in scope and specificity, they have been significantly strengthened and broadened over time in a number of states, particularly where farming operations play an important role in the economy. Indeed, North Dakota and Missouri have enshrined the right-to-farm in their state constitutions.
Those concerned with the scope of Right-to-Farm laws have argued that industrial scale farms utilize them to defeat the claims of neighbors, often low income and minority residents, adversely impacted by their operations. Animal rights activists have also cited their adverse impact on animal welfare, and environmental organizations have raised concerns about their generation of air and water pollutants.
More than 20 years ago, an early advocate of Right-to-Farm laws expressed misgivings about their continued expansion and the pushback to such expansion that could result in agricultural restrictions. One example noted was the adoption of additional environmental requirements. This could be of particular concern as a number of Right-to-Farm laws expressly limit their purview to farms that comply with such requirements.
Given the breadth of protection now afforded by Right-to-Farm laws in a number of states, those laws may well constitute an effective checkmate against class action tort recovery by nearby residents. Whether such residents have another mechanism for addressing their concerns about odor, noise, and air and water pollutant impacts is an open question, especially in depressed areas seeking to maintain or attract businesses. Nevertheless, nonprofit organizations may utilize the power of the press to highlight those issues, and that in turn might lead to the predicted pushback, either in the form of tighter environmental restrictions or stricter scrutiny with respect to compliance with existing environmental requirements.