Nuisance Litigation: Concentrated Animal Farming Operations

Texas has long been known as a ranching and farming state, but the nature of livestock farming has changed over the last decade. As the National Association of Local Boards of Health (NALBH) points out in its publication Understanding Concentrated Animal Feeding Operations and Their Impact on Communities, large corporate agricultural operations are replacing family farms. Technological innovations that increase efficiency and productivity have allowed more animals to be concentrated in smaller spaces, known as Animal Farming Operations (AFOs). Particularly large AFOs are known as Concentrated Animal Farming Operations (CAFOs). These AFOs and CAFOs can have negative impacts on the surrounding environment.

CAFOs can contain tens or even hundreds of thousands of beef cattle, dairy cows, hogs, or chickens. As the livestock agriculture industry establishes more and more of these operations throughout Texas, many people are finding the peaceful enjoyment of their own homes disrupted by the arrival of a nearby CAFO. According to the USDA, "AFOs congregate animals, feed, manure and urine, dead animals, and production operations on a small land area." This concentration can create public health issues, not least because of the quantity of manure produced. The NALBH lists the following as potential results from CAFOs:

• Contaminated ground water, which is a major source of drinking water for many communities;
• Polluted surface water;
• Accidental releases of manure;
• Reduced air quality because of the odor emanating from concentrated manure; and
• Emissions of various kinds of harmful particulates.

Furthermore, the NALBH points out that the noxious odors that CAFOs produce are far worse than those from traditional family farms. CAFOs can also be breeding grounds for insects such as flies and mosquitos, as well as a source of pathogens that can cause disease or infection in humans as well as animals. Numerous studies establish that proximity to a CAFO reduces property values, perhaps from the following factors:

• Negative effects of odors and insects;
• Risk of air and water contamination;
• Loss of the ability to enjoy the property; and
• Potential stigma from being near a CAFO.

AFOs and CAFOs are regulated by the US Environmental Protection Agency and the Texas Commission on Environmental Quality. But these state regulations may not prevent a nearby AFO or CAFO from having a detrimental impact on your property or your home, should you live near one. What are your options as an individual to stop these bad neighbors from ruining your ability to enjoy your property in peace?

One way to fight back against a CAFO is to file a nuisance case against it. According to the Texas Supreme Court, a nuisance is "a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it." ( Crosstex N. Texas Pipeline L.P. v. Gardiner, 2016 Tex. LEXIS 580 (TX 2016)) In a recent case, the Texas Supreme Court clarified that the term "nuisance" describes a legal injury that results from another's interference with the use and enjoyment of real property. This injury supports a cause of action seeking legal relief because it is an invasion of the plaintiff's legal rights.

To prevail in a nuisance case, the plaintiff has to prove both the existence of a nuisance, and separately, that the defendant is legally responsible for that nuisance. Factors supporting the existence of a nuisance include:

• Physical damage to the plaintiff's property;
• Economic harm to the property's market value;
• Harm to the plaintiff's health; and
• Psychological harm to the plaintiff's peace of mind.

As the discussion of CAFOs above indicates, if one of these operations sets up shop nearby, and depending on your situation, you may well have substantial evidence of a nuisance. If you are successful in court, you can obtain:

• Monetary damages;
• An injunction against the defendant; or
• Self-help abatement, meaning you can take steps yourself to stop the nuisance.

While a nuisance action may be your best bet against a CAFO, there's a catch. That catch is called the Texas Right to Farm Act (Tex. Agric. Code sections 251.001-251.006). With this law, the Texas Legislature intended to reduce the state's loss of agricultural resources by limiting nuisance actions against agriculture operations - meaning the whole purpose of the law is to protect AFOs by curtailing an individual's right to sue one for nuisance. The statute protects all agricultural operations, not just the ones that are large enough to meet the federal government's definition of an AFO or a CAFO. The courts describe the statute as a one year bar to nuisance actions. It says that an individual cannot file a nuisance claim against an agricultural operation that has been lawfully in operation for more than a year if the conditions alleged to be causing the nuisance have existed substantially unchanged since that operation began. If a person brings a claim in violation of this provision (that is, regarding conditions that have existed for more than a year), that person is liable to the agricultural operation for all its costs incurred in defending against that action.

Practically, this means that you should not wait to determine your legal rights. If you wait for more than a year, you may lose the opportunity to stop a CAFO from encroaching on your enjoyment of your property.

Another claim you may be able to bring against a CAFO is a claim for trespass. Trespass is a legal wrong involving real property. To prove trespass under Texas law, you must be able to show:

• An entry or intrusion;
• Onto another's real property;
• Without permission or authorization from the property's owner.

A trespass could occur, for example, if a neighboring farm releases manure or liquid waste onto your property. The Right to Farm Act explicitly refers to nuisance claims, so a trespass claim may escape the one-year bar. But at least one Texas court of appeals has rejected a trespass claim where it was based on the exact same facts that supported a nuisance claim that was time-barred. (See Ehler v. LVDVD , 319 S.W.3d 817 (Tx. Ct. App. 2010).) In that case, the plaintiffs relied on the alleged encroachment of waste from a dairy to prove both nuisance and trespass. Therefore, any alleged trespass must be separate from the condition or circumstances alleged to have caused a nuisance.

The Bloomberg News Service reports that toxic tort claims against CAFOs are on the rise. A toxic tort is a claim for legal injury involving a plaintiff's exposure to a toxic or harmful substance. Examples of toxic torts include cases involving exposure to pesticides, pharmaceuticals, or other chemical substances such as asbestos. The plaintiff in a toxic tort case must prove that she was exposed to a harmful substance that caused her injury. One example of such an allegation in a CAFO case might stem from groundwater contaminated by manure. While causation can be difficult to prove in these kinds of cases, more and more studies are beginning to indicate significant potential harm to both individuals and the environment from CAFOs. Additionally, Bloomberg says that environmental groups are attempting to bring lawsuits against CAFOs claiming violation of federal environmental laws, such as the Resource Conservation and Recovery Act and the Clean Water Act.

Recently, some plaintiffs have had success in nuisance actions against CAFOs in states such as North Carolina and Iowa. In the North Carolina case, the first of some 26 federal lawsuits against the same defendants, plaintiffs were neighbors of a large-scale hog farm. Plaintiffs complained that the waste management systems at the farm created a nuisance. The trial court ruled that North Carolina's Right to Farm law didn't protect the defendants (although note that its language differs from the Texas statute), and the jury awarded plaintiffs significant damages. This award was later reduced because of North Carolina laws limiting the amount of punitive damages that can be awarded. The defendants have appealed. One interesting factor in this case was that the plaintiffs didn't actually sue the hog farm itself, but the company with which the farm had contracted to raise hogs.

In a 2016 Iowa case also involving a hog farm, plaintiffs successfully sued defendants for damages based on nuisance. The court in that case found that Iowa's Right to Farm statute (which again differs from Texas's) was unconstitutional as it applied to the plaintiffs.

Suing an agricultural operation can be tricky, but it is not impossible. Given the very short window of time in which to file a nuisance lawsuit because of the Right to Farm Act, it is imperative to consult an attorney right away when odors or other emissions from a nearby farm begin to have an impact on your property. Call me at (903) 944-7537 for a consultation.