In 1900, approximately one-third of all Americans identified as farmers. By 2023, that number had fallen to less than 2%. Today America leads the world in agricultural production and exports agricultural commodities around the globe, but as the business of producing food and fiber has become increasingly mechanized and fewer Americans are directly involved in the daily work of agriculture, new and more frequent conflicts have erupted between those farms and agribusinesses that produce our food and the communities in which these businesses exist. Elected leaders, agency officials, and judges are called on with increasing frequency to decide where the line between the rights of property owners and the rights of nearby farmers and agribusinesses should be drawn. This can be difficult, especially in an economy where large farms and agribusinesses now provide food and fiber for consumers and markets hundreds of miles away from the point of production.
Animals produce manure. Farm equipment generates dust. Greenhouses require intense lighting at often-inconvenient hours. These are but a few of the many realities that accompany modern agricultural practices that now allow only a tiny fraction of Americans to produce the food and fiber needed by domestic consumers and markets around the world. However, for homeowners and individuals residing near farms and agribusinesses, these features of modern agricultural production are often considered to be an unpleasant source of frustration. In cases throughout the country, homeowners and other parties have sought relief for this frustration by asserting claims for nuisance in the courts. These claims, and the judicial and legislative approaches to them, have created a new twist on the centuries-old tort of nuisance.
Landowners have long enjoyed the legal right to seek relief for injuries arising out of an unlawful entry to the owner’s land. Where this unlawful entry took the form of a physical entry onto the owner’s property, the landowner’s right to relief arose as an action for trespass. However, in cases where an adjoining or nearby owner’s actions resulted in an injury to the landowner without an actual entry onto the landowner’s property, the action for trespass was unavailable. Out of these circumstances grew the cause of action for nuisance. Over time, nuisance evolved to become the tort of choice for landowners whose use and enjoyment of their property was impeded or impaired by activity on an adjoining or nearby property.
The scope of activities or uses that constitute a nuisance has never been concretely defined, and over time, regulators and legislative bodies have done more to declare what does not constitute a nuisance rather than articulate with any particularity what does. Perhaps the best example of this approach as it relates to agriculture is the development and implementation of so-called Right to Farm (RTF) laws enacted by state legislatures throughout the United States. These statutory protections for agricultural operations are a relatively modern answer to the problem of how society must balance its needs for food and fiber production against the rights of property owners to use and enjoy their property. As of 2023, all 50 states have adopted some version of an RTF law to insulate farmers and ranchers from civil liability arising from allegations of nuisance resulting from what would be considered normal agricultural practices. The RTF law in each jurisdiction differs slightly based on the statutory language enacted by the state legislature or local governing body, but the common link among nearly all RTF laws throughout the 50 states is the protection of traditional agricultural operations from allegations of nuisance.
Across the nation, RTF laws typically take one of two forms: one based on the character of the agricultural operation and one based on the character of the community in which the operation is situated. Both versions are common, along with specific statutory requirements that must be satisfied before an agricultural operation may avail itself of the protections of an RTF law. A comprehensive overview of state RTF laws is beyond the scope of this article, but some commonalities and recent applications of state RTF laws illustrate well how tensions between agricultural production and nonagricultural uses can create interesting legal questions and policy dilemmas for practitioners and policymakers.
Many state RTF laws grew out of the notion of “first in time, first in right.” States with rich agricultural economies sought to provide legal protection for agricultural operations when the communities in which they were situated began to take on increasingly nonagricultural characteristics. With the passage of time and the evolution of technology, these protections have been applied across a range of scenarios. In a relatively recent example, the Supreme Court of Mississippi, in Briggs v. Hughes, 316 S.3d 193 (Miss. 2021), interpreted the Mississippi Right to Farm Act in the case of a farming operation that utilized a propane cannon to scare away wildlife with loud noise. This practice, while effective at deterring wildlife from destroying crops, was objectionable for nearby neighbors, who brought an action against the farming operation alleging common law nuisance. The Briggs case illustrates a common difficulty associated with application of RTF laws in a 21st-century context. Farming practices evolve, and agricultural operations must embrace new techniques. At issue in Briggs was the scope of protection provided by the Mississippi RTF law. The farming operation in Briggs had existed for many years, but the farm’s use of propane cannons to deal with wildlife was new. The key question in Briggs was simply whether a propane cannon used for noise generation comes within the protection of the Mississippi RTF law. Plaintiffs argued that the longevity of the farm should be considered independently from the specific activity that generated the alleged nuisance, in this case, the noise generated by the propane cannon, and that the newly implemented cannon firing was therefore not part of the farming operation protected by the RTF law. The Supreme Court of Mississippi disagreed.
The text of an RTF law is always critical for determining what is protected. The Mississippi RTF law at issue in Briggs barred nuisance actions against any “agricultural operation” that had been in existence for one year or more. No one disputed that the farm in Briggs had existed for longer than one year. What was disputed was whether the recent addition of a propane cannon to scare away wildlife—previously not a part of the row crop operation—was nevertheless protected by the Mississippi RTF law. The court found that the legislature’s use of “agricultural operation” extended the protection provided by the RTF law to all the practices conducted on the farm that could be reasonably related to agricultural production. The Mississippi Supreme Court agreed with the trial court that the propane cannon, though not historically a part of row crop agriculture, was still sufficiently related to agricultural production to enjoy protection under the Mississippi RTF law.
Briggs illustrates one common species of RTF laws, those granting protection to the entire agricultural operation regardless of the activity alleged to constitute a nuisance. Under these laws, a practice will be statutorily exempted from a nuisance action as long as it is reasonably related to the operation’s ongoing agricultural activities. These RTF laws provide the broadest scope of coverage for agricultural operations. In a jurisdiction with an “agricultural operations” RTF law, almost anything that occurs on a farm would be immunized against allegations of nuisance.
In contrast to the sweeping RTF laws like that at issue in Briggs, many jurisdictions have enacted RTF laws based on the character of the farming operation and the surrounding community. In these jurisdictions, the protections provided by the RTF law are based on the continuation of an established farming practice in long use on a particular tract of land despite what may be the changed character of the surrounding community. A case from North Carolina illustrates this approach.
In Durham v. Britt, 117 N.C. App. 250 (1994), the Court of Appeals of North Carolina considered a case involving the proposed conversion of an existing turkey farm into a confinement swine operation, which the surrounding property owners found objectionable. While commercial poultry operations and confinement swine operations are both intensive agricultural businesses, a fundamental distinction must be noted between these agricultural operations. Unlike most commercial poultry operations, confinement swine operations typically involve the installation and use of large lagoons for the storage and management of manure and liquid waste produced by the hogs. These lagoons are often criticized by neighbors and others who find their odor to be an alleged nuisance. Such was the case in Durham.
The North Carolina RTF law is an example of a typical RTF law that immunizes ongoing agricultural operations from allegations of common law nuisance based on the character of an ongoing agricultural operation. Key to the analysis in Durham, however, was the statutory provision providing that “[n]o agricultural or forestry operation or any of its appurtenances shall be or become a nuisance, private or public, by any changed conditions in or about the locality thereof after the same has been in operation for more than one year, when such operation was not a nuisance at the time the operation began . . .” (emphasis added). The court focused on the fundamental differences between the production practices for poultry and swine. The operation had been in business as a commercial poultry facility for over 60 years and was fully protected from allegations of nuisance based on that ongoing practice. However, the switch to swine production and the resultant change in character of the operation, the court found, did not come within the “in operation for more than one year” requirement of the North Carolina RTF law. Accordingly, the North Carolina court sided with the plaintiffs and denied the farm its claimed protection under the North Carolina RTF law.
The conversion of a commercial poultry farm into a confinement swine operation is easily identifiable as a change in the character of an agricultural operation, but more subtle changes to a farm operation present even more interesting scenarios that challenge courts to consider the scope of protection afforded agricultural operations under state RTF law. Take the case of Trickett v. Ochs, 838 A.2d 66 (Vt. 2003), where a farmer operated an apple orchard that had been in production for over a century. Due to changes in demand for the farmer’s apples and market requirements, the farmer began processing his apples in a cold storage facility on the farm rather than simply picking them and shipping them to a nearby warehouse. The processing involved applying a coat of wax to the apples, boxing them for cold storage, and loading them onto large trucks, all of which had previously been done elsewhere. The farmer’s neighbors objected to the noise and light generated by the additional trucks that were now visiting the farmer’s apple operation, none of which had previously been necessary prior to the farmer’s upgrade to his production operation. The neighbors brought an action against the farmer for nuisance.
The Vermont court looked at the state’s RTF law and considered its application in the context of the farmer’s new production process. Even though the farm had been in commercial apple production for over a century, the Vermont court concluded that it was not entitled to protection under the Vermont RTF law because the new production processes, while still part of commercial apple production, were not sufficiently well established as part of the operation and that the farm was not being challenged by nonagricultural interests arising out of a somehow changed character of the surrounding community.
These cases illustrate the difficulty that courts face when considering allegations of nuisance against agricultural operations in every state. On the one hand, applying the statutory provisions of the state RTF law is a straightforward exercise in statutory interpretation not unlike the day-to-day work of the judiciary in other contexts. On the other hand, however, are the factual questions often arising out of cases involving changed production practices, new farming techniques, and transition of a farming operation to new lines of business based on changed economic circumstances. Statutory language is key, and assessing the scope of the jurisdiction’s RTF law is a critical first step in assessing whether litigants have valid claims or defenses in cases involving alleged agricultural nuisance. As noted above, a thorough overview of RTF laws among the states is beyond the scope of this article; however, the National Agricultural Law Center, an entity within the Agricultural Research Service of the U.S. Department of Agriculture, provides an excellent overview of each state’s RTF law and offers a comparison of how RTF laws differ across jurisdictions on its website.
Raising hogs and planting crops have been accepted agricultural practices for centuries, but what about the more cutting-edge agricultural enterprises that are rapidly becoming necessary to sustain the volume and variety of commodities that consumers, particularly Americans, demand on grocery store shelves? As consumers demand more from farmers, the law must give farmers the protection necessary to meet those demands. Many state legislatures have declared it to be the public policy of their states to encourage agricultural production and safeguard production agriculture from liability for what might traditionally be considered a routine agriculture practice. This declared public policy informs courts and judges when deciding the scope of protection offered by state RTF laws.
A particular example of the tension associated with new and expanding agricultural practices can be found in the developing controlled environment agriculture (CEA) sector. Traditional greenhouse agriculture for the production of fruits and vegetables was developed by the Dutch centuries ago and commercialized throughout Europe. Even today the Dutch lead the world in development of innovative CEA production technology and techniques. As CEA facilities have grown up in North America, they have ushered in a new strategy for providing fresh fruits and vegetables that are otherwise not in season in local markets, or that would have to be transported by truck for thousands of miles. Like any new technology, however, the development of CEA facilities has come with challenges in local communities.
A modern CEA facility bears little resemblance to a backyard greenhouse familiar to some readers. A 21st-century CEA facility for production of tomatoes or cucumbers would likely be 30 to 60 acres in size, all enclosed in a glass or plastic environment. Most importantly, to produce fruits and vegetables out of their regular growing season, CEA facilities use intense supplemental lighting to lengthen the daylight hours for the growing crops. This supplemental lighting has led to neighbors asserting claims of nuisance for light pollution from CEA facilities.
A recent case from Georgia involving allegations of nuisance from light pollution emitted by a CEA facility illustrates one approach often invoked by courts to adjudicate nuisance claims involving agricultural operations. In Kempton v. Southern Flavor Real Estate, LP, 886 S.E.2d 862 (Ga. Ct. App. 2021), the Georgia Court of Appeals considered an appeal by a homeowner alleging that the supplemental lighting used by the Southern Flavor greenhouse created a nuisance for which the homeowner demanded compensation. The Georgia court ultimately found in favor of the greenhouse operator and rejected the homeowner’s claim for nuisance, but the court did not rely on an RTF law or similar statutory immunity. Instead, the court looked to the zoning ordinances and the regulatory framework for permitting a CEA facility to begin operation.
The Southern Flavor greenhouse at issue in Kempton was constructed in an area zoned for agricultural purposes. The developers secured permits for the CEA facility from the State of Georgia, and the evidence in the case offered no indication that the facility was operated unlawfully. Accordingly, the court held that Southern Flavor’s use of supplemental lighting for its CEA facility was not a nuisance and dismissed plaintiff’s claims. Importantly, the court invoked an existing precedent to find that an operation specifically permitted by the relevant authorities could only be considered a nuisance if operated negligently or unlawfully. Southern Flavor’s greenhouse was neither, and plaintiff’s claims for nuisance failed.
The law applicable to agriculture often lags behind the technology, and courts and lawmakers must be creative when considering new advances in agriculture. An example of how one community collectively addressed the issue can be found in the Canadian towns of Leamington and Kingsville, Ontario. This region is often considered the CEA capital of North America, with nearly every major greenhouse operator in North America maintaining a production presence in the area. As a result, residents and CEA operators are often at odds over the extensive use of supplemental lighting during winter months. Rather than wait on the Canadian courts to rule on the issue of agricultural nuisance, elected lawmakers got involved.
Not all legislative action involving agriculture favors industry. In 2020, Leamington began consideration of a new bylaw (ordinance) to restrict the use of supplemental lighting by CEA facilities. CEA operators contended that the government was acting in haste and giving insufficient consideration to the likely effect of the proposed restriction on the economic viability of CEA in the region. After substantial negotiation and engagement by community advocates and industry representatives, a compromise restriction on the use of supplemental lighting in CEA facilities was eventually enacted. While CEA operators would have preferred the status quo position of no regulation, balancing the needs of industry against the rights of residents resulted in a legislative approach to the problem.
As agricultural technology continues to advance and fewer people are directly engaged in the production of the world’s food and fiber, new tensions will develop between those involved in agricultural production and those who benefit from it. The common law evolves slowly as courts grapple with fact-based evolution of new legal doctrines on a case-by-case basis. As a result, it is often the role of legislative bodies to step in and provide answers informed directly by the will of the people who both feel the negative consequences of new agricultural production techniques and benefit from the availability of cheap and safe foods in supermarkets every day. Consumers have an emotional attachment to food, and how food is produced matters deeply to many customers. Technology has played a role in feeding the world since humans first began practicing agriculture. Now, with fewer people involved in the daily work of producing food and fiber, people are no longer exposed to the undesirable side of agriculture with regularity. This unfamiliarity occasionally manifests in a desire to change laws and regulations to push agriculture to other areas or reduce the extent to which certain agricultural practices can be implemented in a particular community. Courts and legislative bodies will continue wrestling to find the appropriate balance between the rights of homeowners and residents and the needs of modern production agriculture. As they do, it is critical that lawyers and policymakers recognize that as society changes and as our expectations for how food and fiber are produced evolve, the law must reflect reality—and the reality is that agriculture can be a stinky business, but it is one on which we all depend every single day.
