Amicus Curiae Brief — Janet L. Himsel, et al., Petitioners v. 4/9 Livestock, LLC, et al.

Supreme Court briefAug 21, 2020

Ask Donna

What actually matters in this document.

Text

NO. 20-72

IN THE

SUPREME COURT OF THE UNITED STATES

JANET L. HIMSEL, MARTIN RICHARD HIMSEL,

ROBERT J. LANNON, AND SUSAN M. LANNON,

Petitioners,

4/9 LIVESTOCK, LLC, CO-ALLIANCE. LLP,

SAMUEL T. HIMSEL, CORY M. HIMSEL, CLINTON S. HIMSEL,

AND STATE OF INDIANA,

Respondents.

On Petition for Writ of Certiorari to the

Court of Appeals of Indiana

BRIEF OF INDIANA FARMERS UNION, FAMILY FARM

ACTION ALLIANCE, FOOD & WATER WATCH,

AMERICAN GRASSFED ASSOCIATION, FARM AID,

HOOSIER ORGANIC MARKETING EDUCATION, DAKOTA

RURAL ACTION, IDAHO ORGANIZATION OF RESOURCE

COUNCILS, IOWA CITIZENS FOR COMMUNITY

IMPROVEMENT, AND MISSOURI RURAL CRISIS CENTER

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

Jessica L. Culpepper

Counsel of Record

Kristina M. Sinclair

PUBLIC JUSTICE, P.C.

1620 L Street NW, Suite 630

Washington, DC 20036

jculpepper@publicjustice.net

(202) 797-8600

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

INTERESTS OF AMICI CURIAE .............................. 1

INTRODUCTION ........................................................ 5

SUMMARY OF ARGUMENT ..................................... 6

ARGUMENT ............................................................... 7

I. Right-to-farm laws take away local farmers

and residents’ ability to defend their land

and livelihoods from CAFOs. ........................... 7

A. Current right-to-farm laws protect

corporate interests, not local farmers. .. 7

B. CAFOs are a recent and growing

threat to local farmers. .......................... 9

C. The present case demonstrates how

right-to-farm laws protect CAFOs

that harm neighboring properties. ...... 11

II. CAFOs significantly interfere with

local farmers and residents’ use and

enjoyment of property and

investment-backed expectations. ................... 14

A. CAFOs negatively affect air quality

on nearby properties. ........................... 14

i. Odors & Particulate Matter ...... 15

ii. Harmful Pathogens ................... 17

B. CAFOs negatively affect water

quality on nearby properties. .............. 20

i. Toxic Algae Blooms ................... 21

ii. Harmful Pathogens ................... 22

C. CAFOs negatively affect soil quality

on nearby properties. ........................... 23

CONCLUSION .......................................................... 26

iii

TABLE OF AUTHORITIES

Statutes

IND. CODE § 32-30-6-9(d)(1) (2005) ...................... 11

IND. CODE § 34-1-52-4(f) (1981) ........................... 11

Other Authorities

A. Arfken, et al., Comparison of Airborne Bacterial

Communities From a Hog Farm & Spray Field,

25 J. MICROBIOLOGY & BIOTECHNOLOGY 709

(2015)....................................................................... 20

A. George, et al., Risk of Antibiotic-Resistant

Staphylococcus aureus Dispersion From Hog

Farms, RISK ANALYSIS (2020) ................................. 19

A. Hagerman, et al., Temporal & Geographic

Distribution of Weather Conditions Favorable to

Airborne Spread of Foot-and-Mouth Disease in

the Coterminous United States, 161 PREVENTIVE

VETERINARY MEDICINE 41 (2018) ........................... 18

A. McEachran, et al., Antibiotics, Bacteria, &

Antibiotic Resistance Genes: Aerial Transport

From Cattle Feed Yards Via Particulate Matter,

123 ENVTL. HEALTH PERSPECTIVES 337 (2015) ...... 19

A. Schultz, et al., Residential Proximity to

CAFOs & Allergic & Respiratory Disease,

130 ENVTL. INT’L 104911 (2019) ............................. 16

B. Jones, et al., Zoonosis Emergence Linked to

Agricultural Intensification & Environmental

Change, 110 PNAS 8399 (2013) ............................. 18

B. Pavilonis, et al., Relative Exposure to Swine

Animal Feeding Operations & Childhood Asthma

Prevalence in an Agricultural Cohort, 122 ENVTL.

RES. 74 (2013) ......................................................... 16

C. Givens, et al., Detection of Hepatitis E Virus &

Other Livestock-Related Pathogens in Iowa

Streams, 556 SCI. TOTAL ENVTL. 1042 (2016) ........ 22

C. Heaney, et al., Source Tracking Swine Fecal

Waste in Surface Water Proximal to Swine CAFOs,

511 SCI. TOTAL ENVTL. 676 (2015).......................... 21

C. Jones, et al., Livestock Manure Driving Stream

Nitrate, 48 AMBIO 1143 (2019) ............................... 21

C. McKinney, et al., Occurrence & Abundance of

Antibiotic Resistance Genes in Agricultural Soil

Receiving Dairy Manure, 94 FEMS MICROBIOLOGY

ECOLOGY 1 (2018) ................................................... 24

C. Theofel, et al., Microorganisms Move a Short

Distance into an Almond Orchard From an

Adjacent Upwind Poultry Operation, 86 APPLIED &

ENVTL. MICROBIOLOGY 1 (2020) .............................. 18

CLAUDIA COPELAND, CONG. RES. SERV., RL32948,

AIR QUALITY ISSUES & ANIMAL AGRICULTURE:

A PRIMER (2014) .......................................... 14, 15, 16

D. Ferguson, et al., Detection of Airborne

Methicillin-Resistant Staphylococcus aureus

Inside & Downwind of a Swine Building, 21 J.

AGROMEDICINE 149 (2016) ...................................... 19

D. Williams, et al., Airborne Cow Allergen,

Ammonia & Particulate Matter at Homes Vary

With Distance to Industrial Scale Dairy

Operations, 10 ENVTL. HEALTH 72 (2011) ............. 14

D. Williams, et al., Cow Allergen (Bos D2) &

Endotoxin Concentrations Are Higher in the

Settled Dust of Homes Proximate to Industrial

Scale Dairy Operations, 26 J. EXPOSURE SCI. &

ENVTL. EPIDEMIOLOGY 42 (2016) ............................ 16

D. Wolf & H. Klaiber, Bloom & Bust:

Toxic Algae’s Impact on Nearby Property Values,

135 ECOLOGICAL ECON. 209 (2017)......................... 22

E. Berry, et al., Effect of Proximity to a Cattle

Feedlot on Escherichia coli O157:H7 Contamination

of Leafy Greens & Evaluation of the Potential for

Airborne Transmission, 81 APPLIED & ENVTL.

MICROBIOLOGY 1101 (2015) .................................... 18

EPA, LITERATURE REVIEW OF CONTAMINANTS IN

LIVESTOCK & POULTRY MANURE & IMPLICATIONS

FOR WATER QUALITY (2013) .................................... 21

G. Innes, et al., External Societal Costs of

Antimicrobial Resistance in Humans

Attributable to Antimicrobial Use in Livestock,

41 ANN. REV. PUBLIC HEALTH 141 (2020) ............... 19

G. Kafle, et al., Emissions of Odor, Ammonia,

Hydrogen Sulfide, & Volatile Organic Compounds

From Shallow-Pit Pig Nursery Rooms, 39 J.

BIOSYSTEMS ENGINEERING 76 (2014) ...................... 14

H. Isakson & M. Ecker, An Analysis of the Impact

of Swine CAFOs on the Value of Nearby Houses, 39

AGRIC. ECON. 365 (2008) ......................................... 16

J. Casey, et al., High-Density Livestock Operations,

Crop Field Application of Manure, & Risk of

Community-Associated Methicillin-Resistant

Staphylococcus aureus Infection in Pennsylvania,

172 JAMA INTERNAL MEDICINE 1980 (2013) ......... 20

J. Fisher, et al., Residential Proximity to Intensive

Animal Agriculture & Risk of Lymphohematopoietic

Cancers in the Agricultural Health Study,

31 EPIDEMIOLOGY 478 (2020).................................. 17

J. Hand, Right-to-Farm Laws: Breaking New

Ground in the Preservation of Farmland,

45 U. PITT. L. REV. 289 (1984) .................................. 7

J. Rinsky, et al., Livestock-Associated Methicillin

& Multidrug Resistant Staphylococcus aureus is

Present Among Industrial, Not Antibiotic-Free

Livestock Operation Workers in North Carolina,

8 PLOS ONE (2013) ................................................. 20

J. Schaeffer, et al., Size, Composition, & Source

Profiles of Inhalable Bioaerosols From Colorado

Dairies, 51 ENVTL. SCI. TECH. 6430 (2017) ...... 14, 18

K. Hoelzer, et al., Antimicrobial Drug Use in FoodProducing Animals & Associated Human Health

Risks, 13 BMC VETERINARY RES. 211 (2017) ......... 19

K. Kilburn, Human Impairment From Living

Near Hog CAFOs, J. ENVTL. & PUBLIC HEALTH 1

(2012)....................................................................... 17

vii

L. Ashwood, et al., Property Rights & Rural Justice:

A Study of U.S. Right-to-Farm Laws, 67 J. RURAL

STUDIES 120 (2019) ................................................... 8

L. Casanova, et al., Antibiotic-Resistant Salmonella

in Swine Wastes & Farm Surface Waters, 71

LETTERS IN APPLIED MICROBIOLOGY 117 (2020) ..... 22

L. He, et al., Discharge of Swine Wastes Risks

Water Quality & Food Safety: Antibiotics &

Antibiotic Resistance Genes From Swine

Sources to the Receiving Environments, 92 ENVTL.

INT’L 210 (2016) ...................................................... 23

L. Schinasi, et al., Air Pollution, Lung Function, &

Physical Symptoms in Communities Near

Concentrated Swine Feeding Operations,

22 EPIDEMIOLOGY 208 (2011)............................ 16, 17

Leah Douglas, Big Ag is Pushing Laws to Restrict

Neighbors’ Ability to Sue Farms, NPR (Apr. 12,

2019), https://www.npr.org/sections/thesalt/2019/

04/12/712227537/big-ag-is-pushing-laws-to-restrictneighbors-ability-to-sue-farms ................................. 8

M. Carrel, et al., Pigs in Space: Determining the

Environmental Justice Landscape of Swine

CAFOs in Iowa, 13 INT’L J. ENVTL. RES. PUBLIC

HEALTH 1 (2016) ..................................................... 25

M. Davis, et al., Occurrence of Staphylococcus

aureus in Swine & Swine Workplace Environments

on Industrial & Antibiotic-Free Hog Operations in

North Carolina, 163 ENVTL. RES. 88 (2018) ........... 19

viii

M. Jahne, et al., Emission & Dispersion of

Bioaerosols From Dairy Manure Application

Sites, 49 ENVTL. SCI. TECH. 9842 (2015) ................ 18

M. Mallin, et al., Industrial Swine & Poultry

Production Causes Chronic Nutrient & Fecal

Microbial Stream Pollution, 226 WATER, AIR &

SOIL POLLUTION 407 (2015) .................................... 21

M. Oliveira, et al., Presence & Survival of

Escherichia coli O157:H7 on Lettuce Leaves & in

Soil Treated with Contaminated Compost &

Irrigation Water, 156 INT’L J. FOOD MICROBIOLOGY

133 (2012) ................................................................ 23

NAT’L AGRIC. STAT. SERV., USDA, AC-97-A-51, 1997

CENSUS OF AGRICULTURE: UNITED STATES (1999) .. 10

NAT’L AGRIC. STAT. SERV., USDA, AC-97-A-14, 1997

CENSUS OF AGRICULTURE: INDIANA (1999) ............. 10

NAT’L AGRIC. STAT. SERV., USDA, AC-07-A-51, 2007

CENSUS OF AGRICULTURE: UNITED STATES (2009) .. 10

NAT’L AGRIC. STAT. SERV., USDA, AC-07-A-14, 2007

CENSUS OF AGRICULTURE: INDIANA (2009) ............. 10

NAT’L AGRIC. STAT. SERV., USDA, AC-17-A-51, 2017

CENSUS OF AGRICULTURE: UNITED STATES (2019) .. 10

NAT’L AGRIC. STAT. SERV., USDA, AC-17-A-14, 2017

CENSUS OF AGRICULTURE: INDIANA (2019) ............. 10

Press Release: NC Dep’t of Agric. & Consumer

Servs., Flood Crops Cannot Be Used for Human

Food (Sep. 21, 2018) ............................................... 25

Press Release: NC Dep’t of Envtl. Quality,

Division of Water Resources Issues Notice of

Violation to B&L Farms (Jul. 16, 2020) ................ 25

O. Alegbeleye & A. Sant’Ana, Manure-Borne

Pathogens as an Important Source of Water

Contamination, 227 INT’L J. HYGIENE & ENVTL.

HEALTH 113524 (2020) ........................................... 22

R. Dungan, Estimation of Infectious Risks in

Residential Populations Exposed to Airborne

Pathogens During Center Pivot Irrigation of Dairy

Wastewaters, 48 ENVTL. SCI. TECH. 5033 (2014).... 18

R. Simons, et al., The Effect of a Large Hog

Barn Operation on Residential Sales Prices in

Marshall County, KY, 6 J. SUSTAINABLE REAL

ESTATE 93 (2014) .................................................... 16

S. Haack, et al., Genes Indicative of Zoonotic &

Swine Pathogens are Persistent in Stream Water &

Sediment Following a Swine Manure Spill,

81 APPLIED & ENVTL. MICROBIOLOGY 3430 (2015).. 25

S. Hatcher, et al. Occurrence of MRSA in Surface

Waters Near Industrial Hog Operation Spray

Fields, 565 SCI. TOTAL ENVTL. 1028 (2016)............ 22

S. May, et al., Respiratory Health Effects of

Large Animal Farming Environments, 15 J.

TOXICOLOGY & ENVTL. HEALTH 524 (2012) ............ 17

S. Rasmussen, et al., Proximity to Industrial Food

Animal Production & Asthma Exacerbations in

Pennsylvania, 14 INT’L J. ENVTL. RES. & PUBLIC

HEALTH 362 (2017) ................................................. 16

S. Trabue, et al., Odorous Compounds Sources &

Transport From a Swine Deep-Pit Finishing

Operation: A Case Study, 233 J. ENVTL. MGMT. 12

(2019)....................................................................... 15

S. Wardyn, et al., Swine Farming is a Risk Factor

for Infection With & High Prevalence of Carriage of

Multidrug-Resistant Staphylococcus aureus,

61 CLINICAL INFECTIOUS DISEASES 59 (2015)......... 20

V. Blanes-Vidal, et al., Chronic Exposure to

Odorous Chemicals in Residential Areas & Effects

on Human Psychosocial Health, 490 SCI. TOTAL

ENVTL. 545 (2014) ................................................... 17

V. Blanes-Vidal, et al., Residential Exposure to

Outdoor Air Pollution From Livestock Operations &

Perceived Annoyance Among Citizens, 40 ENVTL.

INT’L 44 (2012) ........................................................ 17

WILLIAM MCBRIDE & NIGEL KEY, ECON. RES. SERV.,

USDA, ERR-158, U.S. HOG PRODUCTION FROM 1992

TO 2009: TECHNOLOGY, RESTRUCTURING, &

PRODUCTIVITY GROWTH (2013) .................................. 9

Wynne Davis, Overflowing Hog Lagoons Raise

Environmental Concerns in North Carolina, NPR

(Sep. 22, 2018), https://www.npr.org/2018/09/22/

650698240/hurricane-s-aftermath-floods-hoglagoons-in-north-carolina ....................................... 25

INTERESTS OF AMICI CURIAE

The Indiana Farmers Union (IFU) works to

protect and enhance the economic well-being of family

farmers, whether they are long-established or

beginning their agricultural journey.1 IFU is a voice

for approximately 1,000 member farmers who are

committed to conserving Indiana’s natural bounty.

IFU advocates for the sustainable production of food,

fiber, fuel, and feed. IFU is committed to representing

the interests of Indiana farmers on issues such as

quality of life in rural communities, sustainability,

competitive markets, monopolies and consolidation,

conservation, and the environment.

Family Farm Action Alliance (FFAA) is a

coalition of family farmers and advocates seeking to

protect farming and rural communities from

multinational agribusiness monopolies through which

powerful corporations increasingly exert control over

agriculture,

extract

wealth

from

farming

communities, and turn farmers into cogs. These

monopolies shut down mechanisms for farmers to

bring their goods to market independent of the major

companies, and then force them to farm on the

companies’ terms. FFAA promotes research and

advances policies that will reverse this trend.

1 All parties consented to the filing of this brief, and all parties

received timely notice of IFU’s intent to file an amicus brief. No

counsel for a party authored any part of this brief, and no person

or entity other than amici made a monetary contribution

intended to fund the preparation or submission of this brief.

Food & Water Watch (FWW) is a national

nonprofit organization that mobilizes regular people

to build political power to move bold and

uncompromised solutions to the most pressing food,

water, and climate problems of our time. Factory

farming is a priority issue for FWW and its more than

one million members and supporters. FWW is

engaged in numerous campaigns to hold the factory

farming industry accountable for its adverse impacts

on rural communities and the environment. FWW has

more than 14,000 members and supporters in

Indiana.

American

Grassfed

Association

(AGA)

supports, advocates, and promotes American grassfed and pasture-based farms and ranches, from farm

to marketplace. AGA achieves its mission by

maintaining a national standard for animals

humanely raised on pasture; advocating for policies

that support American grassfed producers and family

farms; and partnering with likeminded organizations

to strengthen rural economies.

Farm Aid aims to raise awareness about the

loss of family farms and to keep farm families on the

land. Farm Aid works with local, regional, and

national organizations to promote fair farm policies,

defend family farm-centered agriculture, and

organize against the rise of industrial livestock

facilities that negatively impact family farm

livelihoods, rural economies, public health, and

natural resources.

Hoosier Organic Marketing Education (HOME)

is a nonprofit organization dedicated to educating

about regenerative and organic agriculture and

certification options, family farm advocacy and

community development by connecting farmers to

consumers, linking farmers to resources and funding

opportunities, and educating consumers about the

importance of organic food. HOME also works as a

farmer advocate with Farm Aid, providing resources

for disaster assistance and support in Indiana.

Dakota Rural Action (DRA) organizes people

and builds leadership to protect environmental

resources, advocate for resilient agricultural systems,

and empower people to create policy change that

strengthens their communities and cultures. DRA has

members across South Dakota working for healthy

and just food and agriculture systems that protect

clean air, water, and soil for all the current and future

inhabitants of South Dakota.

The Idaho Organization of Resource Councils

(IORC) is a democratically controlled, member-based

organization. IORC empowers people to improve the

well-being of their communities, sustain family farms

and ranches, transform local food systems, promote

clean energy, and advocate for responsible

stewardship of Idaho’s natural resources. IORC is

dedicated to supporting local farmers and ranchers.

Iowa Citizens for Community Improvement

(Iowa CCI) is a grassroots membership organization

that believes in a food and farm system that works for

farmers, workers, eaters, and the environment, not

corporations. Iowa CCI believes factory farms and

corporate agriculture are responsible for the

decimation of Iowa’s rural communities, independent

family farmers, and natural resources. Iowa CCI also

believes that the farm system belongs in the hands of

many independent family farmers, not a handful of

corporations. Iowa CCI organizes everyday people to

win policies that put people and the planet before

corporate profits.

The Missouri Rural Crisis Center (MRCC) is a

statewide farm and rural membership organization

committed to preserving family farms, promoting land

stewardship and environmental integrity, and

striving for social justice and economic opportunity by

building unity and mutual understanding between

rural and urban groups. MRCC organizes family

farms and rural communities to keep industrial

livestock operations from replacing family farms and

destroying the economies and fabric of rural

communities. MRCC also leads efforts to stop

legislation that strips rural counties of their ability to

protect family farmers and rural residents’ health, air,

water, and property rights from industrial livestock

operations.

INTRODUCTION

Industrial animal operations are a growing

threat to rural farmers and residents. Over the past

three decades, the shift from independent family

farmers to corporate control in the food system has

increased the number of industrial animal producers

that confine thousands, or even millions, of animals in

large, specialized facilities without access to the

outdoors. These concentrated animal feeding

operations (CAFOs) produce massive amounts of

manure, wastewater, odor, dust, and other harmful

pollutants, which negatively affect the air, water, and

soil in local communities; the viability of local farms;

and the health and well-being of local residents.

Consequently, the expansion of industrial animal

operations decreases local farmers and residents’

property values and significantly interferes with their

ability to use and enjoy their land, including their

ability to farm.

Right-to-farm laws threaten rural farmers and

residents’ right to protect and defend their land from

the adverse environmental, health, and economic

impacts of industrial animal agriculture. Although

these laws were enacted to protect existing farms from

unjustified and costly nuisance actions brought by

newcomers “coming to the nuisance,” this is no longer

true in most states. Due to pressure from corporate

interests, these laws have been amended to protect

CAFOs that enter otherwise bucolic rural

communities, changing their nature completely. Thus,

by immunizing CAFOs from nuisance suits, right-tofarm laws take away local farmers and residents’ wellestablished right to protect their use and enjoyment

of property from interference.

The amici curiae

are comprised of

organizations whose members include independent

family farmers and rural farming communities who

have experienced the adverse impacts of industrial

animal operations, and who have lost their ability to

defend their land and livelihoods due to right-to-farm

laws. As industrial animal operations continue to

threaten rural communities, economies, and

ecosystems, courts must acknowledge when statutes

strip away rural farmers and residents’ ability to

bring nuisance actions against industrial operations

that undermine constitutionally protected property

interests. Thus, we respectfully request this Court

grant the writ of certiorari to protect the longstanding property rights of rural farmers and

residents.

SUMMARY OF ARGUMENT

The expansion of industrial animal operations

in rural agricultural communities poses serious

threats to rural farmers and residents. Industrial

animal operations generate significantly more

manure, waste, and pollution than family farms,

resulting in devastating long-term impacts on local

communities, public health, and the environment.

Although nearby farmers and residents have the

fundamental right to use and enjoy their land without

unreasonable interference from industrial animal

operations, right-to-farm laws have increasingly been

used to prevent rural farmers and residents from

defending their land and livelihoods from the adverse

effects of industrial animal agriculture. Thus, rightto-farm laws strip away rural farmers and residents’

property rights without just compensation.

ARGUMENT

Right-to-farm laws take away local

farmers and residents’ ability to defend

their land and livelihoods from CAFOs.

Rural farmers and residents are adversely

affected by CAFOs that enter rural communities and

interfere with the use and enjoyment of neighboring

farms and homes. However, in recent years, right-tofarm laws have been coopted by corporate interests to

prevent rural farmers and residents from protecting

their property interests and investment-backed

expectations by stripping away their ability to bring

nuisance suits against CAFOs.

Current right-to-farm laws protect

corporate

interests,

not

local

farmers.

Right-to-farm laws were initially intended to

protect family farms from unjustified and costly

nuisance lawsuits brought by people who moved next

to a farm. In the 1970s, states began enacting rightto-farm laws to protect existing farmland from urban

sprawl and development.2 As more people from urban

areas moved into rural communities, their complaints

about local farms also rose.3 To address concerns

about the high cost of defending an unjustified

nuisance action, states enacted right-to-farm laws to

prevent newcomers from moving into an agricultural

2 See J. Hand, Right-to-Farm Laws: Breaking New Ground in the

Preservation of Farmland, 45 U. PITT. L. REV. 289, 290–93

(1984).

3 Id.

community and bringing a nuisance lawsuit against

an existing family farm using traditional agricultural

practices.4 If an existing farm significantly changed

after a resident moved next door, the law typically did

not apply because the resident did not voluntarily

“come to the nuisance.”

Although states intended to protect existing

family farms from unjustified nuisance suits brought

by newcomers “coming to the nuisance,” the purpose

of right-to-farm laws has been subverted by industry

interests in recent years, largely due to lobbying by

trade associations like state farm bureaus.5 Rather

than codify the common-law “coming to the nuisance”

defense, right-to-farm laws now shield new CAFOs

from nuisance actions brought by local farmers and

residents. In most states, right-to-farm laws grant

blanket immunity to industrial animal operations

that have been in an area for a minimal amount of

time, even if the plaintiff moved into their property far

before any CAFOs existed. In nearly half of all states,

including Indiana, existing family farmers and longtime residents cannot bring a nuisance suit against a

new CAFO after its first year of operation, regardless

of subsequent changes.6

4 Id.

See Leah Douglas, Big Ag is Pushing Laws to Restrict

Neighbors’ Ability to Sue Farms, NPR (Apr. 12, 2019),

https://www.npr.org/sections/thesalt/2019/04/12/712227537/bigag-is-pushing-laws-to-restrict-neighbors-ability-to-sue-farms.

6 See L. Ashwood, et al., Property Rights & Rural Justice: A Study

of U.S. Right-to-Farm Laws, 67 J. RURAL STUDIES 120, 127

(2019).

CAFOs are a recent and growing

threat to local farmers.

Although right-to-farm laws initially protected

existing farms using traditional practices, the

amended versions protect CAFOs by characterizing

the shift from a small, independent farm to a large

CAFO as an irrelevant change, rather than an

unforeseeable and significant change to the operation

and surrounding area. For example, in Indiana, no

significant change occurs and thus no nuisance suits

are allowed if family-owned cropland is sold to a

conglomerate and developed into a CAFO that

confines tens of thousands of hogs in massive

windowless concrete buildings. In doing so, right-tofarm laws have shifted from protecting existing family

farmers from people “coming to the nuisance,” to

protecting new CAFOs from existing family farmers

and residents who moved in long before the nuisance

existed.

CAFOs are vastly different than the traditional

family farms that existed several years ago. According

to the U.S. Department of Agriculture (USDA), hog

farms were traditionally small, independent farms

that “fed their hogs crops grown onsite,” and “sold

their hogs at local markets.”7 Conversely, CAFOs are

highly industrialized operations that rely on modern

technology, antibiotics, and imported feed to confine

thousands of animals in large, specialized facilities.8

Without recent technological and pharmaceutical

WILLIAM MCBRIDE & NIGEL KEY, ECON. RES. SERV., USDA,

ERR-158, U.S. HOG PRODUCTION FROM 1992 TO 2009:

TECHNOLOGY, RESTRUCTURING, & PRODUCTIVITY GROWTH 5

(2013).

8 See id. at 5, 17–21.

advancements, it would be impossible to produce

animals in large-scale confinement facilities. Thus,

CAFOs would have been inconceivable to people who

moved to agricultural communities decades ago.

CAFOs were developed in recent decades to

maximize profit, speed, production, and market share

for corporate owners. CAFOs cut costs by taking

advantage of economies of scale and externalizing the

true cost of industrial animal production onto local

farms and communities. Consequently, the expansion

of CAFOs and the corporate-driven industrial model

of production threatens the economic viability of

independent farms with tighter margins. In 2017,

nearly 94 percent of hogs sold in the United States

were produced on operations with over 5,000 hogs,9 up

from 87 percent in 2007,10 and 65 percent in 1997.11

Indiana is no exception. In 2017, approximately 91

percent of all hogs sold in Indiana were produced on

operations with over 5,000 hogs,12 up from 79 percent

in 2007,13 and 45 percent in 1997.14 Thus, right-tofarm laws protect corporate interests by ignoring the

fundamental differences between CAFOs and

9 NAT’L AGRIC. STAT. SERV., USDA, AC-17-A-51, 2017 CENSUS OF

AGRICULTURE: UNITED STATES 24 tbl. 22 (2019).

10 NAT’L AGRIC. STAT. SERV., USDA, AC-07-A-51, 2007 CENSUS OF

AGRICULTURE: UNITED STATES 22 tbl. 22 (2009).

11 NAT’L AGRIC. STAT. SERV., USDA, AC-97-A-51, 1997 CENSUS OF

AGRICULTURE: UNITED STATES 35 tbl. 35 (1999).

12 NAT’L AGRIC. STAT. SERV., USDA, AC-17-A-14, 2017 CENSUS OF

AGRICULTURE: INDIANA 24 tbl. 22 (2019).

13 NAT’L AGRIC. STAT. SERV., USDA, AC-07-A-14, 2007 CENSUS OF

AGRICULTURE: INDIANA 22 tbl. 22 (2009).

14 NAT’L AGRIC. STAT. SERV., USDA, AC-97-A-14, 1997 CENSUS OF

AGRICULTURE: INDIANA 35 tbl. 35 (1999).

independent farms, including their size, ownership,

labor, technologies, practices, and values.

In sum, right-to-farm laws have changed in

recent years to protect CAFOs that enter rural

communities and pollute nearby farms and homes. In

doing so, these laws have stripped away rural farmers

and residents’ ability to bring nuisance suits to defend

their property from the harmful effects of large-scale

industrial animal production, giving CAFOs freedom

to pollute neighboring properties without fear of

litigation.

The present case demonstrates how

right-to-farm laws protect CAFOs

that harm neighboring properties.

The present case involves Indiana’s Right-toFarm Act, which was enacted in the early 1980s and

amended over time to give immunity to CAFOs. This

case demonstrates how right-to-farm laws across the

country have been subverted by corporate interests to

protect CAFOs that pollute local communities and

interfere with the property rights of local farmers and

residents.

In 1981, Indiana enacted a right-to-farm law

that protected existing family farms from lawsuits

brought by newcomers who moved next to a farm, so

long as the farm was operating for at least a year

without significant changes. See IND. CODE § 34-152-4(f) (1981). Thus, Indiana’s original right-to-farm

law codified the “coming to the nuisance” defense.

In 2005, Indiana dramatically altered its rightto-farm law by redefining what constitutes a

“significant change” to an agricultural operation. Id. §

32-30-6-9(d)(1) (2005). Under this amendment, a

“significant change” no longer includes “[t]he

conversion from one type of agricultural operation to

another”; the “[a]doption of new technology”; or a

“change in the . . . type or size of the agricultural

operation.” Id. § 32-30-6-9(d)(1)(A), (B), (D).

Consequently, local landowners have no legal

recourse when a CAFO replaces a small family farm

and begins polluting nearby properties, which is

precisely what happened to the Petitioners in the

present case.

Here, Respondents built a large CAFO with

over 8,000 hogs on a field that was previously used to

grow crops. The Himsels and Lannons had lived next

to the field for decades, and the Himsels had also

raised livestock and grown crops on their property,

long before the CAFO existed. Since the CAFO began

operating, the families have suffered serious adverse

impacts. Odors and harmful gases from the

decomposing manure and confinement facilities travel

through the air at all times of day, preventing the

families from going outside or using and enjoying

their property as they had when they moved into their

homes. Moreover, their property values dropped

substantially.

Under Indiana’s original right-to-farm law

from 1981, the Himsels and Lannons would have an

actionable nuisance claim against the CAFO because

the new large-scale industrial hog operation increased

odors and air emissions, which significantly interfered

with the families’ right to use and enjoy their

properties and decreased their property values.

Because the families lived in their homes long before

the CAFO existed, the “coming to the nuisance”

defense does not apply. Further, the new large-scale

industrial hog operation significantly changed almost

every aspect of the field it replaced, including the

nature and size of the operation and its technologies.

However, Indiana’s amendment from 2005

extinguished any nuisance claims against the new

CAFO by granting immunity to CAFOs that replace

any agricultural field or farm, even if the CAFO is

significantly larger, more industrialized, and more

harmful to the community. Under the amended law,

the Himsels and Lannons have no legal recourse

against the CAFO for interfering with their use and

enjoyment of their land.

As the present case demonstrates, right-tofarm laws have shifted from protecting existing farms

from unjustified nuisance actions brought by

newcomers “coming to the nuisance,” to protecting

new industrial animal operations from valid nuisance

actions brought by existing farmers and residents who

have the right to seek recourse when CAFOs interfere

with the surrounding property and decrease property

values. Thus, right-to-farm laws like the one in

Indiana strip rural farmers and residents of their

ability to protect their constitutionally protected

property rights and investment-backed expectations

from CAFOs.

II.

CAFOs significantly interfere with local

farmers and residents’ use and enjoyment

of property and investment-backed

expectations.

Unlike traditional family farms, CAFOs

produce massive amounts of manure, odor, dust, and

other adverse impacts, which negatively affect local

air, water, and soil quality, public health and safety,

agriculture, and property. As described below, these

impacts significantly interfere with local farmers and

residents’ use and enjoyment of their properties and

their investment-backed expectations.

CAFOs negatively affect air quality

on nearby properties.

CAFOs emit significant amounts of odor, dust,

noxious gas, pathogens, and other harmful air

pollutants, which travel by wind to neighboring

properties and stay in the air for long periods.15 These

emissions decrease local residents’ property values

and interfere with their ability to use and enjoy their

15 See, e.g., CLAUDIA COPELAND, CONG. RES. SERV., RL32948, AIR

QUALITY ISSUES & ANIMAL AGRICULTURE: A PRIMER 2–5 (2014); J.

Schaeffer, et al., Size, Composition, & Source Profiles of

Inhalable Bioaerosols From Colorado Dairies, 51 ENVTL. SCI.

TECH. 6430 (2017) (dairy facilities emit particulate matter and

“opportunistic pathogens”); G. Kafle, et al., Emissions of Odor,

Ammonia, Hydrogen Sulfide, & Volatile Organic Compounds

From Shallow-Pit Pig Nursery Rooms, 39 J. BIOSYSTEMS

ENGINEERING 76 (2014) (hog facilities emit several gases and

odors); D. Williams, et al., Airborne Cow Allergen, Ammonia &

Particulate Matter at Homes Vary With Distance to Industrial

Scale Dairy Operations, 10 ENVTL. HEALTH 72 (2011) (dairy

facilities emit several harmful air pollutants in surrounding

area).

property by negatively affecting local residents’

quality-of-life, health, and well-being. Moreover, these

emissions interfere with local farmers’ property use

and investment-backed expectations by increasing the

spread of harmful pathogens, including infectious

diseases and antibiotic resistant genes.

These emissions arise from the specialized

facilities and technologies on which CAFOs rely to

confine animals, store their feed, and manage their

waste. The main sources of air emissions from CAFOs

are manure storage pits and lagoons, where CAFOs

store enormous amounts of manure and waste until

they can dispose it on nearby agricultural fields.

Manure spread onto agricultural fields is another

major emission source.

Odors & Particulate Matter

CAFOs produce highly offensive odors and

smog in the surrounding area.16 These emissions

significantly interfere with local farmers and

residents’

investment-backed

expectations

decreasing local property values. In a study on the

economic impacts of CAFOs on local residents,

researchers found that the presence of a new hog

CAFO reduced residential sales prices by 23 to 32

See, e.g., COPELAND, supra note 15, at 4; S. Trabue, et al.,

Odorous Compounds Sources & Transport From a Swine DeepPit Finishing Operation: A Case Study, 233 J. ENVTL. MGMT. 12

(2019) (manure storage produces several odorous compounds).

percent, with the greatest effects on downwind

properties.17

Air emissions from CAFOs are not only

annoying and unpleasant to human senses, but they

are also harmful to human health. At low

concentrations, gases emitted from CAFOs can cause

a range of acute symptoms, from skin, eye, nose, and

throat irritation, to respiratory and cardiovascular

irritation, and headaches.18 For nearby residents with

high exposure, air pollutants from CAFOs can also

cause allergies and asthma,19 and lung and brain

17 R. Simons, et al., The Effect of a Large Hog Barn Operation on

Residential Sales Prices in Marshall County, KY, 6 J.

SUSTAINABLE REAL ESTATE 93, 109–10 (2014); see also H.

Isakson & M. Ecker, An Analysis of the Impact of Swine CAFOs

on the Value of Nearby Houses, 39 AGRIC. ECON. 365 (2008).

18 See COPELAND, supra note 15, at 3–4; see, e.g., L. Schinasi, et

al., Air Pollution, Lung Function, & Physical Symptoms in

Communities Near Concentrated Swine Feeding Operations, 22

EPIDEMIOLOGY 208 (2011) (air pollutants near hog operations

cause acute physical symptoms).

19 See, e.g., A. Schultz, et al., Residential Proximity to CAFOs &

Allergic & Respiratory Disease, 130 ENVTL. INT’L 104911 (2019)

(residents near CAFOs have higher rates of asthma and

allergies); S. Rasmussen, et al., Proximity to Industrial Food

Animal Production & Asthma Exacerbations in Pennsylvania, 14

INT’L J. ENVTL. RES. & PUBLIC HEALTH 362 (2017); B. Pavilonis,

et al., Relative Exposure to Swine Animal Feeding Operations &

Childhood Asthma Prevalence in an Agricultural Cohort, 122

ENVTL. RES. 74 (2013); see also D. Williams, et al., Cow Allergen

(Bos D2) & Endotoxin Concentrations are Higher in the Settled

Dust of Homes Proximate to Industrial-Scale Dairy Operations,

26 J. EXPOSURE SCI. & ENVTL. EPIDEMIOLOGY 42 (2016).

damage.20 Thus, odors, particles, and other harmful

pollutants from CAFOs can interfere with local

farmers and residents’ ability to go outside.21

Moreover, air emissions from CAFOs interfere with

local farmers’ ability to farm by preventing farmers

from working on their land.

ii.

Harmful Pathogens

CAFOs emit dust containing harmful

microorganisms and pathogens, which can infect

livestock on nearby farms and significantly interfere

with local farmers’ investment-backed expectations.

By concentrating thousands of animals in a small

area, CAFOs increase the spread of infectious

diseases among densely confined animals, and these

diseases can spread easily to animals on nearby farms

20 See, e.g., J. Fisher, et al., Residential Proximity to Intensive

Animal Agriculture & Risk of Lymphohematopoietic Cancers in

the Agricultural Health Study, 31 EPIDEMIOLOGY 478 (2020)

(residents near CAFOs have higher rates of non-Hodgkin

lymphoma and leukemia); K. Kilburn, Human Impairment From

Living Near Hog CAFOs, J. ENVTL. & PUBLIC HEALTH 1, 4–6

(2012) (residents near CAFOs have higher rates of

neurobehavioral and pulmonary impairments); S. May, et al.,

Respiratory Health Effects of Large Animal Farming

Environments, 15 J. TOXICOLOGY & ENVTL. HEALTH 524 (2012)

(CAFO emissions “produce a wide spectrum of upper and lower

respiratory tract diseases”); L. Schinasi, et al., supra note 18.

21 See V. Blanes-Vidal, et al., Residential Exposure to Outdoor Air

Pollution From Livestock Operations & Perceived Annoyance

Among Citizens, 40 ENVTL. INT’L 44 (2012) (exposure to animal

waste odor is “a significant degradation in [rural residents’]

quality of life”); V. Blanes-Vidal, et al., Chronic Exposure to

Odorous Chemicals in Residential Areas & Effects on Human

Psychosocial Health, 490 SCI. TOTAL ENVTL. 545 (2014) (exposure

to animal waste odor affects rural residents’ “psychosocial health

and well-being”).

through the air,22 potentially killing livestock and

increasing veterinary costs for local farmers. CAFOs

also increase the spread of infectious microorganisms

between animals and humans (commonly referred to

as zoonotic diseases),23 which can interfere with local

farmers’ ability to farm.

Moreover, because CAFOs commonly use

antibiotics to prevent disease, reduce production

See, e.g., A. Hagerman, et al., Temporal & Geographic

Distribution of Weather Conditions Favorable to Airborne Spread

of Foot-and-Mouth Disease in the Coterminous United States, 161

PREVENTIVE VETERINARY MEDICINE 41 (2018) (foot-and-mouth

disease can spread between livestock premises by air); C.

Theofel, et al., Microorganisms Move a Short Distance Into an

Almond Orchard From an Adjacent Upwind Poultry Operation,

86 APPLIED & ENVTL. MICROBIOLOGY 1 (2020) (foodborne

pathogens from CAFOs can travel to nearby orchards by air); E.

Berry, et al., Effect of Proximity to a Cattle Feedlot on Escherichia

coli O157:H7 Contamination of Leafy Greens & Evaluation of the

Potential for Airborne Transmission, 81 APPLIED & ENVTL.

MICROBIOLOGY 1101 (2015) (E. coli from CAFOs can travel to

nearby crops by air).

23 See B. Jones, et al., Zoonosis Emergence Linked to Agricultural

Intensification & Environmental Change, 110 PNAS 8399, 8401–

03 (2013); see, e.g., J. Schaeffer, et al., supra note 15; M. Jahne,

et al., Emission & Dispersion of Bioaerosols From Dairy Manure

Application Sites, 49 ENVTL. SCI. TECH. 9842 (2015) (bioaerosols

from manure application pose significant health risks to

“downwind receptors”); R. Dungan, Estimation of Infectious

Risks in Residential Populations Exposed to Airborne Pathogens

During Center Pivot Irrigation of Dairy Wastewaters, 48 ENVTL.

SCI. TECH. 5033 (2014) (bioaerosols from wastewater irrigation

pose greatest infection risks to nearby residents).

costs, and increase animal growth rates,24 they

dramatically increase the amount of antibiotic

resistant genes and bacteria in the surrounding

area.25 By spreading antibiotic resistant genes and

bacteria to nearby farms and animals, CAFOs make

it more difficult for independent farms to treat

infections and prevent outbreaks among livestock.26

Antibiotic residues from CAFOs also significantly

interfere with the investment-backed expectations of

local farmers who raise antibiotic-free animals.27

Further, antibiotic resistant bacteria and genes from

See K. Hoelzer, et al., Antimicrobial Drug Use In FoodProducing Animals & Associated Human Health Risks, 13 BMC

VETERINARY RES. 211 (2017) (finding that “antimicrobial use on

farms or feedlots contributes to the problem of antimicrobial

resistance”).

See A. George, et al., Risk of Antibiotic-Resistant

Staphylococcus aureus Dispersion From Hog Farms, RISK

ANALYSIS (2020) (“[A]ntibiotic‐resistant S. aureus can be present

in air, soil, water, and household surface samples gathered in or

near high‐intensity hog operations.”); see, e.g., D. Ferguson, et

al., Detection of Airborne Methicillin-Resistant Staphylococcus

aureus Inside & Downwind of a Swine Building, 21 J.

AGROMEDICINE 149 (2016) (methicillin-resistant S. aureus

(MRSA) was present in air downwind of CAFO); A. McEachran,

et al., Antibiotics, Bacteria, & Antibiotic Resistance Genes: Aerial

Transport From Cattle Feed Yards Via Particulate Matter, 123

ENVTL. HEALTH PERSPECTIVES 337 (2015) (antibiotic resistant

genes and bacteria were present in air downwind of CAFOs).

26 See G. Innes, et al., External Societal Costs of Antimicrobial

Resistance in Humans Attributable to Antimicrobial Use in

Livestock, 41 ANN. REV. PUBLIC HEALTH 141 (2020).

27 See M. Davis, et al., Occurrence of Staphylococcus aureus in

Swine & Swine Workplace Environments on Industrial &

Antibiotic-Free Hog Operations in North Carolina, 163 ENVTL.

RES. 88 (2018) (multidrug-resistant S. aureus (MDRSA) was

present in air downwind of CAFO but not antibiotic-free farms).

CAFOs can transfer to humans through the air,28

potentially exposing local farmers to heightened

health risks and medical costs, and interfering with

their use of property.29

CAFOs negatively affect water

quality on nearby properties.

CAFOs degrade local water quality by

increasing concentrations of manure, nutrients,

pathogens, and other harmful pollutants in local

water sources. These contaminants decrease local

residents’ property values and interfere with their use

and enjoyment of property by increasing toxic algae

blooms and health risks. Moreover, these

contaminants interfere with local farmers’ property

use and investment-backed expectations by reducing

their yields and increasing their costs.

See A. Arfken, et al., Comparison of Airborne Bacterial

Communities From a Hog Farm & Spray Field, 25 J.

MICROBIOLOGY & BIOTECHNOLOGY 709 (2015) (air emissions from

CAFOs and spray fields can spread antibiotic-resistant bacteria

and opportunistic pathogens to farmers and nearby residents); J.

Casey, et al., High-Density Livestock Operations, Crop Field

Application of Manure, & Risk of Community-Associated

Methicillin-Resistant Staphylococcus aureus Infection in

Pennsylvania, 172 JAMA INTERNAL MEDICINE 1980 (2013)

(CAFOs significantly increase risk of MRSA and skin- and softtissue infections for nearby residents).

29 See, e.g., J. Rinsky, et al., Livestock-Associated Methicillin &

Multidrug Resistant Staphylococcus aureus is Present Among

Industrial, Not Antibiotic-Free Livestock Operation Workers in

North Carolina, 8 PLOS ONE 1 (2013); S. Wardyn, et al., Swine

Farming is a Risk Factor for Infection With & High Prevalence of

Carriage of Multidrug-Resistant Staphylococcus aureus, 61

CLINICAL INFECTIOUS DISEASES 59 (2015).

These contaminants enter local water sources

through direct discharges to local waterways, or

manure applications to local agricultural fields.30

When CAFOs apply excessive amounts of manure to

agricultural fields, nutrients in the manure, such as

nitrogen and phosphorus, accumulate in the soil, and

enter waterways through soil erosion and runoff.31

Likewise, when CAFOs apply excessive amounts of

manure to croplands, the excess nitrogen can

mineralize into nitrate, which is an extremely soluble

form of nitrogen that can move through soil with soil

water, often leaching into groundwater or surface

waters.32

Toxic Algae Blooms

Manure runoff and discharges from CAFOs

have several adverse impacts on local farmers and

residents’ use and enjoyment of property. For

example, nutrient loading contributes to oxygen

depletion and excessive algae blooms in surface

waters, which leads to degraded water quality, fish

mortality, and other harmful ecological impacts.33

See, e.g., M. Mallin, et al., Industrial Swine & Poultry

Production Causes Chronic Nutrient & Fecal Microbial Stream

Pollution, 226 WATER, AIR & SOIL POLLUTION 407 (2015); C.

Heaney, et al., Source Tracking Swine Fecal Waste in Surface

Water Proximal to Swine CAFOs, 511 SCI. TOTAL ENVTL. 676

(2015).

31 See, e.g., M. Mallin, et al., supra note 30.

32 See, e.g., C. Jones, et al., Livestock Manure Driving Stream

Nitrate, 48 AMBIO 1143, 1143–53 (2019) (nitrate was

significantly higher in watersheds with high concentration of

livestock).

33 See EPA, LITERATURE REVIEW OF CONTAMINANTS IN LIVESTOCK

& POULTRY MANURE & IMPLICATIONS FOR WATER QUALITY 47–48

(2013).

Algae blooms in recreational and drinking water

sources can also produce toxins, such as cyanobacteria

(commonly referred to as blue-green algae), which are

harmful to livestock and aquatic life, as well as

humans.34 Moreover, algae blooms can dramatically

reduce the value of waterfront properties.35 Thus,

CAFOs decrease property values and significantly

interfere with local farmers and residents’ right to use

and enjoy their properties by increasing toxic algae

blooms.

ii.

Harmful Pathogens

CAFOs cause harmful pathogens to enter local

water sources by disposing large amounts of manure

and wastewater onto local agricultural fields.36 These

34 Id.

35 See D. Wolf & H. Klaiber, Bloom & Bust: Toxic Algae’s Impact

on Nearby Property Values, 135 ECOLOGICAL ECON. 209 (2017)

(properties near algal-infested waters lost 22 percent of their

value).

See O. Alegbeleye & A. Sant’Ana, Manure-Borne Pathogens as

an Important Source of Water Contamination, 227 INT’L J.

HYGIENE & ENVTL. HEALTH 113524 (2020); see, e.g., L.

Casanova, et al., Antibiotic-Resistant Salmonella in Swine

Wastes & Farm Surface Waters, 71 LETTERS IN APPLIED

MICROBIOLOGY 117, 120 (2020) (“Salmonella, including

antibiotic-resistant Salmonella, are common in hog wastes, and

can be found in environmental waters associated with hog

CAFOs.”); S. Hatcher, et al. Occurrence of MRSA in Surface

Waters Near Industrial Hog Operation Spray Fields, 565 SCI.

TOTAL ENVTL. 1028 (2016) (MRSA and MDRSA were present in

surface waters near CAFO spray fields); C. Givens, et al.,

Detection of Hepatitis E Virus & Other Livestock-Related

Pathogens in Iowa Streams, 556 SCI. TOTAL ENVTL. 1042 (2016)

(zoonotic pathogens were present in surface waters near

manure application sites).

pathogens can adversely affect local residents who

rely on the contaminated water source for drinking

water or recreation, as well as local farmers who rely

on the water source to feed livestock or irrigate

crops.37 In addition to finding alternative water

sources, independent farmers bear the cost of treating

infected livestock and destroying contaminated crops.

Therefore, CAFOs interfere with local farmers and

residents’ property use and investment-backed

expectations by increasing pathogen contamination in

local water sources.

CAFOs negatively affect soil quality

on nearby properties.

CAFOs degrade local soil quality by increasing

concentrations of manure, nutrients, heavy metals,

and other harmful pollutants in nearby agricultural

fields and residential properties. CAFOs also threaten

soil quality on nearby properties by holding massive

amounts of manure in long-term manure storage

structures prone to breakage and spillage. Soil

contaminants from CAFOs interfere with local

farmers’ ability to farm by reducing productivity and

increasing costs.

37 See, e.g., L. He, et al., Discharge of Swine Wastes Risks Water

Quality & Food Safety: Antibiotics & Antibiotic Resistance Genes

From Swine Sources to the Receiving Environments, 92 ENVTL.

INT’L 210 (2016) (vegetables irrigated with swine wastewater can

contain antibiotic resistant genes); M. Oliveira, et al., Presence &

Survival of Escherichia coli O157:H7 on Lettuce Leaves & in Soil

Treated with Contaminated Compost & Irrigation Water, 156

INT’L J. FOOD MICROBIOLOGY 133 (2012) (lettuce irrigated with

contaminated water can contain E. coli).

CAFOs contribute to excessive nutrients and

pollutants in the soil on nearby properties by

disposing manure and wastewater onto local

agricultural fields. For local farmers with tight

margins, excessive soil nutrients can threaten their

economic viability by reducing crop yields. Further,

excessive soil nutrients can reduce forage for animals

raised on pastures, potentially increasing feed costs

for local pasture-based farms. Moreover, manure from

CAFOs can increase soil concentrations of other

highly persistent pollutants, such as antibiotic

residues, which increase the spread of antibioticresistant bacteria on nearby farms.38 Thus, CAFOs

interfere with local farmers’ property use and

investment-backed expectations by decreasing soil

productivity and increasing costs relating to feed, soil

remediation, and disease prevention.

CAFOs also negatively affect the soil quality on

nearby agricultural fields and residential properties

by storing massive amounts of manure and waste in

long-term storage systems prone to leakage and

spillage. When there is an infrastructure failure or

heavy rain storm, manure lagoons can spill decades’

worth of accumulated waste onto local properties,

causing crop destruction, soil degradation, water

See, e.g., C. McKinney, et al., Occurrence & Abundance of

Antibiotic Resistance Genes in Agricultural Soil Receiving Dairy

Manure, 94 FEMS MICROBIOLOGY ECOLOGY 1 (2018) (manure

applications significantly increase abundance of antibiotic

resistant genes in soil).

contamination, and other adverse impacts.39 Further,

for local farms with tight margins, the long-term

effects include increased disease among livestock,40

and reduced crop yields, quality, and revenue.41 Thus,

CAFOs negatively affect local farmers and residents’

properties by increasing the risk of manure spills.

See M. Carrel, et al., Pigs in Space: Determining the

Environmental Justice Landscape of Swine CAFOs in Iowa, 13

INT’L J. ENVTL. RES. PUBLIC HEALTH 1, 13 (2016) (areas with

“high densities of swine” are “significant hotspots of hog manure

spills” with “uneven exposure to the negative impacts of

uncontrolled manure release”); see, e.g., Press Release: NC Dep’t

of Envtl. Quality, Division of Water Resources Issues Notice of

Violation to B&L Farms (Jul. 16, 2020) (hog lagoon breach

caused three million gallons of manure to spread “into farms,

wetlands, and . . . tributary”), https://deq.nc.gov/news/pressreleases/2020/07/16/division-water-resources-issues-noticeviolation-bl-farms; Wynne Davis, Overflowing Hog Lagoons

Raise Environmental Concerns in North Carolina, NPR (Sep. 22,

2018), https://www.npr.org/2018/09/22/650698240/hurricane-saftermath-floods-hog-lagoons-in-north-carolina.

40 See S. Haack, et al., Genes Indicative of Zoonotic & Swine

Pathogens are Persistent in Stream Water & Sediment Following

a Swine Manure Spill, 81 APPLIED & ENVTL. MICROBIOLOGY 3430

(2015).

41 See, e.g., Press Release: NC Dep’t of Agric. & Consumer Servs.,

Flood Crops Cannot Be Used for Human Food (Sep. 21, 2018)

(“Farmers whose crops were flooded . . . face not only the

prospect of lower yields and loss of quality, but also the reality

that those crops cannot be used for human food.”),

https://www.ncagr.gov/paffairs/release/2018/Floodedcropscannt

beusedforhumanfood.htm.

In sum, CAFOs pose several threats to the

property rights of local farmers and residents,

including increased odor, air pollution, water

contamination, soil degradation, infectious disease,

and antibiotic resistance. However, right-to-farm laws

strip away local farmers and residents’ ability to bring

nuisance actions to defend their property from

CAFOs, without compensating local farmers and

residents for their loss of property rights.

CONCLUSION

We respectfully request this Court grant the

writ of certiorari to protect the long-standing property

rights of rural farmers and residents.

Respectfully submitted,