Right-to-Farm Debate Heats Up

Controversies over laws in all 50 states that protect the rights of farmers to actually farm.


Credit: cwwycoff1 / photo on flickr

If I asked you to think of an agricultural-law issue that's been making news in states across the country recently, you'd probably throw up your hands in the air. Maybe you'd shrug and suggest something to do with genetically modified food (GMO) labeling. And if I told you, as I am, that the answer to my question was Right-to-Farm laws—which NPR labeled "a divisive national issue" earlier this year—I suspect my first task would be to explain just what the heck the term means.

Right-to-Farm laws are on the books in all fifty states. They are enshrined into some state constitutions, including in Missouri, where the state constitution now guarantees, in perpetuity, "the right of farmers and ranchers to engage in farming and ranching practices" in the state.

Right-to-Farm laws like Missouri's generally serve two key purposes. First, they protect farm owners from state and local regulations that might restrict farming. For example, Louisiana recently issued a statewide ban on all private burns in the state, a measure adopted as a result of dry conditions. But the state's farmers are exempt from the ban. That's because Louisiana's Right to Farm Law defines burning as a generally accepted agricultural practice.

Second, Right-to-Farm laws also protect farmers against the real specter of nuisance lawsuits. In particular, they help protect farmers against lawsuits by neighbors who—in legal parlance—come to the nuisance. "Many agricultural areas have seen individuals without farm backgrounds and little understanding of farm operations moving into the neighborhood," reads a 2013 University of Maryland report on the state's Right-to-Farm law. "Once there, they find noises, insects, farm equipment on the roads, smells and normal characteristics of agricultural and rural life unexpected and objectionable and then they complain."

So Right-to-Farm laws protect farmers against those who move near farmland, only to then complain about the all farming that's going on around them. The laws can also protect new agricultural businesses. For example, a New York Right-to-Farm law recently helped a goat farm in the Catskills beat back opposition from neighbors after the owner sought to reopen a vacant barn in the center of the small town of Andes and turn it into a microcreamery.

While the creamery or the practice of agricultural burning in Louisiana may not be terribly controversial, other generally accepted agricultural practices around the country, along with legal protections for farmers, have put Right-to-Farm laws in the crosshairs of activists in recent years.

The Humane Society of the United States, a leading animal-rights group, opposes Right-to-Farm laws. In a piece on Missouri's Right-to-Farm law, Modern Farmer labeled HSUS the "outside group most often associated with trying to dictate how the farmers of Missouri operate" in the state. NPR called the fight in Missouri, which ended in defeat for animal-rights advocates, "a fight between two sides that loathe each other."

Some environmental groups also oppose the measures. That's the case in Indiana, where retired farmer Dick Himsel is suing a neighbor, a hog farm, despite the state's strong Right-to-Farm law. The Hoosier Environmental Council, a group that "has targeted food safety, animal rights and the environmental impact the corporate livestock industry has in Indiana," filed the suit on behalf of Himsel, whose lawsuit centers on his claims about odors and dust he says the neighboring CAFO has emitted since it first opened two years ago.

But don't Right-to-Farm laws preclude lawsuits like Himsel's? Not exactly. The fact they serve as an affirmative defense doesn't prevent (and hasn't prevented) people like Himsel from filing lawsuits against farming operations. It just makes such lawsuits far less likely to succeed than non-agricultural nuisance lawsuits.

Himsel says he'd love to pack up and move from his Indiana farm, but he claims the hog farm has devalued his property so much that he couldn't sell it off. In a perfect world, if Himsel's claims are true, then the hog farm might offer to buy Himsel's property at a reasonable price. Right-to-Farm laws make a fair-market-value purchase like that far less likely.

The flipside of Himsel's argument is what many see as proper comeuppance for animal-rights groups. These groups have used the law to restrict foie gras, dictate minimum sizes for hen cages and pig crates, and crack down on other agricultural practices. For years, they've been on the offensive. Right-to-Farm laws—particularly those enshrined in state constitutions—put these groups on the defensive.

When animal rights groups have sought to defend their own rights to advance their agenda in the marketplace of ideas, I've defended that right. But using the law to crack down on the rights of farmers has had the unintended consequence of forcing those same farmers to fight back with laws of their own.

Supporters of Right-to-Farm laws include Protect the Harvest, a Missouri-based advocacy group founded by entrepreneur Forrest Lucas in 2011. The group "exists to defend our way of life, preserve our food freedom and stand up for America's farmers, sportsmen, and animal owners." Protect the Harvest argues that Right-to-Farm laws "simply prevent outsiders" from meddling in "current laws and regulations that keep our food healthy, maintain strong welfare for our animals, and reduce impact on the environment."

In many cases, I agree with Protect the Harvest. I have no doubt at all that Right-to-Farm laws offer important protections for farmers of all sizes.

Still, I don't go whole hog on the laws. Ten years ago, Indiana Gov. Mitch Daniels actively encouraged a doubling of hog farming in the state and strengthened Right-to-Farm protections for CAFOs in Indiana. If there's a problem today in Indiana, then it's one Daniels helped foster.

Ultimately, I think states should do nothing either to discourage or to encourage farming. They should always rebuff efforts to legislate away the important rights of farmers to farm. But states shouldn't set centralized agricultural goals that attempt to artificially bolster market demand, either.

The future of Right-to-Farm laws will play out in Indiana and other states in the coming years. Oklahoma voters will decide next year whether to add Right-to-Farm language to that state's constitution. And down the road, Right-to-Farm laws could include protections for marijuana growers. If you hadn't heard of Right-to-Farm laws until today, expect to see lots more on them in coming years.