In the mid-2010s, residents of rural North Carolina started seeing some new billboards in town. A radical environmental group had begun a strategic public relations campaign with signs along rural roads, encouraging residents of the area to “Raise a Stink” about industrial hog farming.
In the coming months, these billboards weren’t the only new things in town. Out-of-state lawyers, seeing an opportunity for a cash cow (or should I say cash hog) of a lawsuit began recruiting potential plaintiffs who would have standing to file a nuisance lawsuit against neighboring hog operations. And by the end of 2018, these efforts paid off exactly as they had been calculated to do: Hundreds of millions of dollars in damages against the hog feeding operation.
This tragic story raised the alarm for agriculture across the nation. If this model could be successful in North Carolina, what was stopping it from being successful in any other state? And if it can be brought against a hog farm, what’s to stop it from coming against a dairy, a cattle feedlot, or even a crop farm, because of the inconvenience of dust and smell that inevitably comes from even a perfectly managed operation? And with urban development encroaching more and more into farm country, how could we protect our farms from enterprising attorneys looking to make big money and big headlines from these lawsuits?
These questions threw so-called Right to Farm Laws -- laws that limit what can and cannot be considered a nuisance in an agricultural context -- into the forefront of agricultural policy discussions. While all 50 states, Arizona included, already have some kind of Right to Farm provisions, North Carolina made it clear that these weren’t enough to protect farms from frivolous nuisance lawsuits or egregious financial penalties as a result of nuisance claims.
What is a Nuisance Lawsuit?
Nuisance is a common law tort under which a plaintiff can sue a defendant, claiming that the defendant’s activities are interfering with the reasonable use and enjoyment of the plaintiff’s property. (Arizona actually heard one of the nation’s keystone cases on nuisance, and it’s a case dealing with a cattle feeding operation.) In the agricultural context, this would manifest in a neighbor suing a farmer because of dust, smell, flies, or noise that emanates from the operation.
Thankfully, the presence of dust or smell alone isn’t enough to sustain a nuisance lawsuit. The plaintiff must show that these elements lead to a substantial interference with their use and enjoyment of property. And in Arizona, our existing Right to Farm laws state that if a nuisance case is brought against an ag operation, “substantial interference” must be proven by showing that there has been a threat to public health and safety because of the farm’s practices.
Now, let’s be clear: a Right to Farm law is not a vehicle by which to give an agricultural operation carte blanche to do whatever it wants. Local ordinances about noise and lights are still applicable. City and county zoning laws are still applicable. State and federal pollution prevention laws are absolutely still applicable (and operations spend tens of thousands of dollars every year to ensure that they can comply). The only thing that is prevented or modified by our law is whether an agricultural operation’s activities can be classified as a common law nuisance. It’s a very narrow restriction, but one that has proved essential. No agricultural operation can be free from dust, smell, or other elements that “city folk” might find objectionable. But that doesn’t mean that the operation is unsafe, harmful, or violating anybody’s rights.
The 2021 Legislature
Since the 2018 verdicts in North Carolina, Arizona ag policy leaders have been looking for opportunities to strengthen our Right to Farm statute, in anticipation that these kinds of lawsuits are not going away. And we found an opportunity in an unexpected place: COVID-19. When the pandemic-induced food supply chain disruptions had everybody discussing ways to strengthen our food distribution systems, we knew that one important factor was to remove the threat of frivolous lawsuits and outrageous jury verdicts from the equation. And that’s when Arizona’s agriculture groups came together to make sure that our laws were strong enough to prevent history from repeating itself.
While an initial draft of the legislation was ready as early as January, it took us until March to get all of the agricultural community on board with the details of the bill. The version ultimately signed by Governor Ducey focuses not on what is or is not a nuisance, but rather on preventing unwarranted lawsuits that are filed just for the sake of harassing or seeking financial windfalls from agricultural operations.
If I learned anything in law school, it was that if your client has made it into the courtroom, it doesn’t matter the outcome: he’s already lost. The cost of engaging legal council and responding to legal claims alone is enough to make any business owner fear for its longevity, much less the cost of preparing for and winning a trial. So, one of the major elements of this bill is preventing any lawsuit that doesn’t have merit from beginning in the first place. It does so by giving the Court discretion to award attorneys fees and costs in favor of the agricultural operation (meaning, the suing party must pay for the farm’s lawyer) if the Court finds the lawsuit was filed in bad faith or for an ulterior purpose. This is like the provisions that we find in family law, which are meant to prevent bickering ex-spouses from bringing each other to court unnecessarily.
The bill also prevents punitive damages awards against an agricultural operation unless that operation has been convicted of a criminal or civil offense in relation to the nuisance. As opposed to compensatory damages, which are the damages that are awarded to compensate for the actual damage caused, punitive damages are awarded to punish bad action or send a message to the rest of the world that society will not stand for this kind of behavior. In the North Carolina case, the hog farm was punished with a range of damages that at one point totaled over $430 million. While North Carolina’s damages laws ultimately ended up capping that award at $94 million, it showed us that leaving open the extent of punitive damages is risky.
The bill was offered as a strike-everything amendment to SB1448 on March 15. The amendment passed on party lines out of the House Land and Agriculture Committee, chaired by Rep. Tim Dunn, and the Senate Natural Resources Committee, chaired by Sen. Sine Kerr. Now that it has been passed by the entire body and signed by Governor Ducey, we’re continuing to tell the story of why good agriculture is worth protecting.
Farmers and ranchers shouldn’t have to constantly look over their shoulders and wonder where the next big threat will come from. Strengthening our Right to Farm law is a big step in the right direction in keeping our food supply safe, stable, and strong.
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