GPSOLO July/August 2009
Agricultural Animals and the Law
The legal issues surrounding agriculture and livestock farms have undergone vast changes through the last 50 years. These changes were heralded by Earl L. Butz, secretary of agriculture under Presidents Richard Nixon and Gerald Ford, who said that farming “is now a big business” and the family farm “must adapt or die” by expanding into large operations reliant on industrial pesticides, herbicides, and fertilizers. Whether this is true or not is open to debate.
What is not open for debate is that the shift from small to large farms has been dramatic and has led to a panoply of legal issues. These include habitat loss and degradation; soil erosion and sedimentation; water resources depletion; soil and water salinization; agrochemical releases; nonpoint water pollution through runoff from fields and livestock operations; chemical air pollution; antibiotic resistant bacteria; salmonella, E. Coli, and Pfiesteria outbreaks; increased injury to workers; and the development of inhumane animal management practices.
Because the trend is toward larger farms and livestock operations, it is unlikely that a solo or small firm practitioner will represent the larger companies. Instead the solos and small firm lawyers will more likely represent someone complaining about intensive farming practices and must address numerous legal issues, including the impact on land values and the environment as well as concerns of neighbors.
Approximately 10 billion land animals are raised and killed for meat, eggs, and milk each year. Of those 10 billion animals, about 35 million cattle are raised for beef, 9 million for milk, and 1 million for veal. Approximately 95 percent (9.5 billion) of the animals in food production are birds.
Most Americans today get their food from a system that raises animals in intensive confinement—several thousand pigs or tens of thousands of chickens per barn. This system of livestock husbandry is called either an animal feeding operation (AFO) or a concentrated (or confined) animal feeding operation (CAFO) and is commonly known as factory farming. This new system for raising animals for food results in new problems for consumers, neighbors of the operations, the environment, workers, and the animals. Intensive animal crowding indoors is not the traditional form of livestock husbandry and has led the industry to create new techniques in animal handling to make the business more efficient. These new systems also lead to problems that may result in legal issues.
For example, a single hog farm with 10,000 animals will produce as much waste as a city with a population of 100,000 people. The question of waste disposal becomes one of the central concerns for a factory farm. And the phenomenally high concentration of waste results in bad odors, flies, and chemical and infectious compounds in the air or water runoff sufficient to create significant health and environmental problems. The U.S. Centers for Disease Control and Prevention (CDC) state that in 2003, the nation’s 238,000 feeding operations produced 500 million tons of manure. (For more, see the CDC’s web page on concentrated animal feeding operations: www.cdc.gov/cafos/about.htm. See also the U.S. Environmental Protection Agency’s web page on national pollutant discharge elimination systems: http://cfpub.epa.gov/npdes/home.cfm?program_id=7.)
The overcrowded conditions of the animals create additional problems for the industry, its neighbors, and consumers. The stressful conditions for the animals result in illness and injury. One way factory farmers address the illness problem is to treat all the animals with sub–therapeutic levels of antibiotics. This reduces illness among the animals but may contribute to the creation of antibiotic–resistant diseases. The stress of overcrowding can cause the animals to fight among themselves, leading to injury or death. To address these concerns, factory farmers de–beak chickens so they cannot peck at each other and dock the tails of pigs; both procedures are done without anesthesia. Because of the enormous numbers of animals in each barn, the animals typically do not ever leave the barn and are fed automatically, reducing the time people spend tending to them. This results in long delays before dead animals are removed from the midst of the other animals. All of these practices result in concerns for food safety, environmental protection, animal welfare, and the value of adjacent properties.
Clean Water Act. On factory farms, raising livestock implicates the Clean Water Act (CWA), which governs the operations of AFOs and CAFOs. In order for an agricultural operation to be considered a CAFO, a facility must first be defined as an AFO.
AFOs are agricultural operations where animals are kept and raised in confined situations. AFOs congregate animals, feed, manure, dead animals, and production operations on a small land area instead of an operation where cattle are allowed to range for food in pastures. AFOs are defined as facilities where animals are confined and fed for 45 or more days in any 12–month period and vegetation or forage is not sustained in the normal growing season over any portion of the lot or facility.
Under the CWA, CAFOs are split into large, medium, and small sizes depending on the number and type of animals, the contact with surface water, and the extent to which the facility could pollute surface and groundwater. Federal regulations require CAFOs to obtain a permit and to develop plans designed to keep animal waste from contaminating surface water and groundwater. It is important to note there is no private right of action contained within the CWA. Instead, any aggrieved party must file a complaint with the Environmental Protection Agency (EPA).
Clean Air Act. The Clean Air Act (CAA) is also relevant because of the significant amount of chemicals released into the air from CAFOs. These releases come from the barns where the animals are housed as well as from manure lagoons and other waste sites. Methane, hydrogen sulfide, nitrogen, and ammonia are released in significant quantities and can lead to air and water pollution and illness.
Within the CAA are two additional areas of focus for CAFOs. The first is the Comprehensive Environmental Response, Compensation, and Liability Act, and the second is the Emergency Planning and Community Right–to–Know Act. These statutes and related regulations require factory farms to report their emissions of ammonia and hydrogen sulfide when they emit more than 100 pounds per day. Industry response to the reporting requirements has been strong, and it is not clear whether the EPA will stand by them or will weaken or eliminate them.
Other federal statutes. There is no federal legislation regulating the conditions of animals being raised on farms. Federal law focuses primarily on the integrity of the food supply.
The Animal Health Protection Act allows for the quarantine, destruction, and disposal as well as restriction of transit of diseased livestock. The Animal Disease Risk Assessment, Prevention, and Control Act of 2001 requires a report on foot–and–mouth disease, bovine spongiform encephalopathy (BSE—also known as “mad cow disease”), and related diseases. The Animal Enterprise Terrorism Act makes it a crime to travel in interstate commerce or use the mail for the purpose of damaging or interfering with any animal enterprise (including farms). The Commercial Transportation of Equine for Slaughter Act regulates the commercial transportation of equine for slaughter. The Humane Slaughter Act provides acceptable methods of slaughter of animals to be used as food; it exempts birds. The Twenty–Eight Hour Law restricts the transportation of animals such that they may not be confined in a vehicle for more than 28 consecutive hours without unloading them for feeding, water, and rest, with some exceptions that extend the time; birds are not covered.
State Constitutional Protections
Some state constitutions, including those of New York, Hawaii, and Nebraska, contain provisions protecting traditional ways of life, including hunting, fishing, and farming. Thus, depending on the state, a livestock owner may have state constitutional protection.
Other state constitutions contain provisions specifically addressing protections for animals. For example, Florida has a constitutional provision to protect pigs, and in 2008 California passed Proposition 2 prohibiting veal crates, battery cages, and sow gestation crates that do not allow animals to turn around freely, lie down, stand up, and fully extend their limbs.
All 50 states have animal cruelty statutes. However, most of these statutes explicitly exempt common farming practices. Oregon’s anticruelty statute is somewhat different because it exempts only “good” farm practices and has no farm exemption for intentional or knowing torture or the malicious killing of an animal.
Some states are now considering whether to require minimum standards of care. Most notably, New Jersey requires humane standards for the care of farm animals. This statute was challenged in New Jersey Society for the Prevention of Cruelty to Animals v. New Jersey Department of Agriculture, 2008. The question presented was whether certain practices could be deemed humane. The court said that the New Jersey Department of Agriculture was required to do more than accept currently used practices: Their job was to identify and allow only those practices that met a humane standard, and they had failed to do that. The court accepted the agency’s decision with respect to certain practices but deemed that its blanket exemption of routine practices was an abuse of the interpretive process because the statute requires humane practices.
This is an area likely to see additional development across the country and bears watching.
One aspect that filters into every legal issue surrounding livestock farming is right–to–farm laws (RTFs). RTFs have been adopted in all 50 states. This is important because RTFs modify the law of nuisance (discussed below).
Generally RTFs cover the growing and harvesting of crops; the feeding, breeding, and management of livestock; and other agricultural and horticultural activities. However, many RTFs apply only to commercial activities, so hobbyists or non–farmers do not qualify for the nuisance protection.
Although RTFs modify nuisance laws, they do not have any impact on environmental laws or pollution legislation. Thus, producers must comply with legislation governing clean water and the disposal of animal manure, absent agricultural exemptions. In addition, negligent or improper operation at an agriculture facility is not protected.
Generally, lawsuits against people or companies raising livestock have two points of entry—when the enterprise first starts and when the operation changes or expands the nature or size of its operation.
Public and Private Nuisance Actions
Nuisance is a use of property that causes injury to others and comes in two forms: private and public. A private nuisance is one that affects the use or enjoyment of land; normally it is privately enforced through a tort action for damages. A public nuisance affects the public at large, does not need to be connected to the land, and is normally enforceable by public officials. However, a public nuisance can give rise to a parallel private nuisance action if private lands are also affected.
As previously stated, the law of nuisance may be modified by RTFs. Common RTFs state that a farming operation shall not be considered or come to be considered a nuisance if it was not a nuisance at the time it began operation, even if conditions change in the surrounding area. Usually the agricultural use must have been in place for one year.
These RTFs modify the traditional “coming to the nuisance” rule—creating an implicit negative easement, prohibiting development on surrounding property and preventing adjacent property owners from suing to prohibit or modify the use as an agricultural nuisance.
In other cases, some courts will consider priority in time as an important factor in nuisance cases and may hold against a plaintiff who “came to a nuisance.”
These laws do not always protect a farm once its use changes or expands. For example, if an owner raised livestock but then added a slaughterhouse or a processing plant at a later date, this expanded use may not be protected. It is also not clear how the RTFs would affect a dispute between a small farm and a large one.
Another limitation on RTFs may require that the farm engage in good agricultural practices as a condition to protection under the RTFs. However, “good practices” is not usually a defined term. Perhaps further developments will clarify this dialogue.
Nuisance actions are considered a supplement to regulation and litigation under the environmental laws. Nuisance actions may be precluded if Congress intended an environmental statute to be the exclusive remedy for a particular offensive use or condition, or if the alleged nuisance has received (or is eligible for) a state or federal permit to operate.
Zoning is another issue for those who raise livestock. Some communities concerned with the development potential of existing agricultural lands can, and have, adopted zoning laws that are designed especially to protect open tracts of land. This may affect individuals trying to sell their property.
For example, a community may adopt a large lot zoning structure that requires minimum lot sizes to be at least ten to 25 acres per housing unit. There may be other protections such as mandatory cluster design, open space residential design, and transfer of development rights.
Other zoning issues may arise when communities restrict the type or number of animals allowed on a property. It may be unlawful to picket livestock or allow livestock to roam in close proximity with residences or commercial buildings where foodstuff is prepared, kept, or sold.
In addition, some city zoning may not allow roosters, may bar swine, and may limit the number of animals that may be raised as food, such as chickens and rabbits, within the city limits.
Many legal issues arise as a result of factory farming and some are now just beginning to be explored. These issues include, but are not limited to, the demand for organic and locally produced livestock and produce, concern over heavy use of antibiotics fed to livestock (about 70 percent of anti–biotics sold in the United States are given to healthy livestock), and disease outbreaks. From this arises a host of legal issues, including nutrition, conservation, genetic engineering, food safety, animal cruelty, insurance policies for farmers, school lunch programs, water quality, cloning, organic farming, and much more.
This may be a rapidly changing area of law in the coming years. Before he was elected president, Barack Obama talked about the need to change agribusiness, boost organic farming, and promote local and regional food systems. President Obama appointed Tom Vilsack, the former governor of Iowa, to be secretary of agriculture. Vilsack has talked about reducing subsidies to megafarms and supports better treatment of farm animals.
In the end, no agricultural operation should ignore good neighborly relations, adequate buffers from neighboring residences and setbacks from boundary lines and water sources (creeks, wells, and ponds), humane animal husbandry, the health consequences of their actions, and compliance with all environmental laws. The manner in which CAFOs attend to these issues (or fail to do so) will likely be a subject of increasing interest for the legal community in the years to come.
Katherine Hessler is the director and clinical professor for the Center for Animal Law Studies at Lewis and Clark Law School, Portland, Oregon; she may be reached at firstname.lastname@example.org. Tanith Balaban is a member of the Oregon State Bar; she may be reached at email@example.com.