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Sunday, January 14, 2007

Environment - Reverse the blanket exemption from nuisance liability for CAFOs

Marty Lucas of BigEastern.com had a very good post this week titled "Time to restore nuisance law property rights." Marty would like to see "a roll-back of a key state statute on nuisance law to the pre-2005 language." He explains:

By specifying that changes in size, ownership and technology cannot be considered a 'change' under the statute, the 2005 amendment [ to IC 32-30-6-9(d)] created a blanket exemption from nuisance liability for CAFOs. Said another way, building a CAFO is defined as a continuation of existing agriculture regardless of any change in the 'size' and 'technology' of the operation. So when huge barns, manure pits and dead critter compost piles replace a bean field, nothing has changed within the eyes of the law. It's just more farming. Justice, in this case is not only blind; it also has a poorly developed sense of smell.
He continues:
I'm not opposed to 'right-to-farm' legislation that doesn't unduly erode common law property rights. The concept that one can't complain when one moves to a nuisance has long been recognized. Therefore codifying that concept to protect farmers engaged in conventional agriculture from nuisance lawsuits is reasonable. However, the 2005 change went beyond that, granting to CAFO operations an easement to damage their neighbors property. No reasonable person could honestly say a CAFO isn't a significant change from a bean field in terms of its impact on neighboring properties.

Ask IDEM officials whether they regulate odor. The answer is 'no'. In fact, there is no regulation of odor at all in Indiana. Ask IDEM whether they regulate activities likely to result in a plague of flies. I'm pretty sure the answer is 'no'. But I don't want to be dependent on IDEM anyway. Give us back our property rights -- in this case, the right to sue an operator who is unreasonably impacting his neighbors. Property rights are in the hands of citizens, and we need more grass-roots action to help rural communities grow and prosper. If the hog facility next door becomes a problem, you should have the right to seek redress -- and not in Indianapolis, but in a court in your own county where people actually might care about your community and your home.

Recently, CAFO operators have been quoted in numerous press accounts saying the concerns about their operations are not based in facts. They say they can control odors and be good neighbors. That would be great. If that's true and if the operators really believe that, then they shouldn't need legislation taking away their neighbors' rights. If CAFO operators want to prove they will be good neigbhors they should support amendment of Indiana's right to farm statute to remove the free ride for CAFOs. If they feel they need special protection from nuisance lawsuits, well, the conclusion is obvious.

If you're concerned about the impact of CAFOs on rural Indiana, please consider passing that concern along to your elected representatives. I feel Indiana's legislators have been slow to sense how widespread concern about this issue really is; I suppose most live in areas far from CAFOs. Democrats can demostrate they care about all the people, including rural homeowners, by restoring this important property right. The right-to-farm law as it existed before 2005 was adequate to protect farmers from unreasonable lawsuits. Better IDEM oversight would be a good idea, but the place to start is restoration of property owners' nuisance rights.

Some related ILB entries are available here, from Jan. 23, 2005, and here, from June 16, 2004.

Posted by Marcia Oddi on January 14, 2007 09:17 PM
Posted to Environment