The legislatures in two states, Georgia and Vermont, are attempting to strengthen the protection provided by their right to farm statutes. All fifty states have enacted right to farm statutes to protect qualifying farmers and ranchers from nuisance litigation filed by their neighbors. Right to farm statutes traditionally protect against nuisance lawsuits brought by neighbors that are affected by odor, lights, noise, dust, or other things that can create a substantial and ongoing interference with the neighbor’s use and enjoyment of their property. The language and the level of protection provided by the right to farm statute vary significantly between the states. States with a strong agricultural sector tend to have stronger right to farm statutes than other states; however, there are exceptions and states amend their right to farm statutes from time to time often spurred by significant court cases.
In Georgia, HB 1150 makes several changes; however, two of the changes are especially significant. The primary change to strengthen the protections of the statute is the removal of language surrounding “changed conditions.” The triggering language in the current statute states that “No agricultural facility, agricultural operation, … shall be or shall become a nuisance, either public or private, as a result of changed conditions in or around the locality of such facility or operation if the facility or operation has been in operation for one year or more. Ga. Code Ann. § 41-1-7(c). This provides for a two-part trigger before the statute provides a defense to a nuisance lawsuit. There must be a “changed condition in or around the locality of such facility or operation” and the farm must have been in existence for at least one year. “Changed condition” was the exact phrase from an older version of the North Carolina right to farm statute, NC Gen Stat § 106-701 (2013), and was at issue in the Smithfield Foods litigation (to read more about these cases click here.) In that case a judge ruled that the North Carolina right to farm statute did not apply because the nuisance lawsuits were not brought as a result of “changed conditions” in the area. By removing the language regarding “changed conditions” the state legislature would simplify the trigger to only requiring a farm to be in operation for more than one year in order to receive the protection of the statute.
The second change in the bill addresses confined animal feeding operations (CAFOs) and swine feeding operations and would establish a new operation date when one of these two types of operations are created. For example, a farm has been established for ten years growing primarily specialty crops so that operation would be entitled to protection under the proposed bill; however, if that same farm wanted to transition over to a CAFO then that protection would be lost for the first year that it operates as a CAFO.
Vermont’s proposed bill, SB 268, would significantly amend and strengthen their right to farm statute. The current version of Vermont’s right to farm statute creates a rebuttable presumption that a farming operation is not a nuisance if certain criteria are met. Vt. Stat. Ann. tit. 12, § 5753. Those conditions are:
- it is conducted in conformity with federal, state, and local laws and regulations (including required agricultural practices);
- it is consistent with good agricultural practices;
- it is established prior to surrounding nonagricultural activities; and
- it has not significantly changed since the commencement of the prior surrounding nonagricultural activity.
Vermont is unique in that their right to farm statute merely creates a rebuttable presumption that an agricultural operation is not a nuisance. A rebuttable presumption means that even if an agricultural operation is successful in meeting all of the conditions needed to trigger the right to farm act protections the plaintiff bringing the nuisance lawsuit can still prevail on the merits of the case during the trial if they are able overcome the presumption that the operation is not a nuisance. Instead, other states’ right to farm statutes create an affirmative defense to nuisance lawsuits if the necessary factors in triggering their protections are met. An affirmative defense is where the law creates a statutory defense that, if certain factors are met, result in a nuisance lawsuit being dismissed even if the plaintiff can prove their case.
The significant changes of the proposed bill would rewrite the triggering language discussed above and award attorney fees to prevailing agricultural operations. The new bill would establish three separate triggers and any one of which would be sufficient to create an affirmative defense for the agricultural operation. The three proposed triggers in SB 268 are:
- The farm or farm operation existed before a change in the land use or occupancy of land in proximity to the farm, and if before that change in land use or occupancy of the farm, the farm or farm operation would not have been a nuisance.
- The farm or farm operation alleged to be a nuisance is in good standing with the Secretary of Agriculture, Food and Markets under 6 V.S.A. chapter 215.
- The farm or farm operation has been conducting the agricultural activity at issue for two or more years prior to the date a nuisance action is commenced. In determining the duration of an agricultural activity on a farm or farm operation, the initial date of operation shall be when the agricultural activity commenced on the farm or farm operation.
The other substantial change to the Vermont right to farm statute deals with the awarding of attorney fees. In the American legal system, each side of a lawsuit is generally responsible for the payment of their own legal fees; however, this can be modified by statute, or courts may award costs for frivolous litigation. SB 268 would modify this “American rule” by requiring the plaintiff to pay the reasonable legal costs of the defendant if the agricultural operation prevails in the nuisance lawsuit.
All fifty states have a right to farm statute; however, the statutes differ across the country and do not remain static. Changes to state right to farm statutes occur on a regular basis and these changes can impact other states that are ether in the process of updating their statute or are considering an update in the near future.
State right to farm statutes are among the most frequent questions that are received at the National Agricultural Law Center. For more information, please contact Senior Staff Attorney Rusty Rumley here.
To see a chart comparing various provisions found in right to farm statutes click here.
To read the full language of all fifty states right to farm statutes click here.