There is a law in every state in America called a right-to-farm law. A lot of people have never heard of it. And the ones who know it best tend to be the people it has been used against.
The origin story is pretty straightforward. In the 1970s and 1980s, suburban development that was shifting away from cities and into rural areas started to make farmers a little uneasy. They found themselves facing nuisance complaints against over noise, odor, dust, the animals.
Before right-to-farm laws existed, these conflicts were largely settled under common law, which was inconsistently applied and placed an expensive legal burden on farmers simply trying to operate. In the context of the shifting demographics of suburbia, the new right-to-farm laws made sense: a farmer who was there first should not be sued out of business by someone who moved next door to a working farm and was surprised to discover it smelled like one. By 1992, every state had a right-to-farm law.
And then, quietly, something changed.
As detailed in their new book, Empty Fields, Empty Promises, a group of writers dig into just how far right-to-farm laws have mutated from their original intent, and how they now have evolved into tools to protect large-scale operations, known widely as CAFOs.
Last month, the Journal of Agriculture, Food Systems, and Community Development reviewed the book and made a very plain argument: the right-to-farm laws don’t really work anymore.
The numbers in the book are pretty hard to argue with.
The mechanism behind this shift is less dramatic than it sounds. Originally, no state statutes provided explicit protection to operations if the product or activities changed. Like if a small farm became a much bigger one. Now, 13 states do.
Originally, only two states protected operations that stopped operating for a period of time. Now another 11 states have adopted similar provisions. These amendments accumulated gradually, often with little public attention, and their cumulative effect was to extend protections that were designed for small family farms to operations that bear no resemblance to them.
What does a CAFO neighbor actually face? If you asked the environmental advocacy group Sierra Club, they’d say the right-to-farm defense is now used to justify pervasive stench, water quality degradation, toxic air emissions, health endangerment, and declines in property values.
In some states, farms are immune from nuisance lawsuits if they use a new but potentially polluting technology, or if their size changes.
The logic of the original law, which is that if you moved next to a farm, you accepted what comes with a farm, has been warped to cover operations that are industrial in scale and impact, regardless of whether the neighbors were there first.
There’s a court case in Indiana that’s pretty illustrative of what’s happened, and worth keeping in mind. In that case, a family farm was converted to a CAFO housing nearly 8,000 hogs. The neighboring family, who had lived there for decades, filed a nuisance claim regarding odors that diminished their quality of life and property value. The court found in favor of the CAFO, reasoning that the land had been used for agricultural purposes since the 1940s and that a conversion from crops to a hog operation did not constitute a significant change in the type of operation.
The family had been there since 1974. The CAFO arrived in 2010. The law said the CAFO had seniority.
None of this means right-to-farm laws should not exist. The original problem they were designed to solve was real. But the laws that exist today in many states are not the laws that were passed in the 1970s. They have been amended, expanded, and in two states — Missouri and North Dakota — elevated to constitutional amendments, pushed in each case by agribusiness interests.
The question worth asking is a simple one: when a law that was written to protect farmers ends up protecting the people who are making it hardest to be a farmer, what exactly is it protecting?