Opposition to Agriculture Nuisance Law Amendment – SB1448

Below is an open letter to Arizona legislators encouraging them to oppose SB1448. We have also shared a letter from researchers at the Center for a Livable Future at Johns Hopkins University describing the public health implications of industrial-scale animal production and a letter from Arizona attorney Howard Shanker describing SB1448’s negative legal implications.

March 23, 2021

RE: Oppose Agriculture Nuisance Law Amendment – SB1448

Dear Legislators:

Please vote against the passage of striker SB1448. This proposed change to Arizona’s agricultural nuisance law (or “right-to-farm” law) would allow large-scale industrial agribusiness operations and most notably, concentrated animal feeding operations (CAFOs) to escape responsibility for their negative impacts. It would also take away the rights of local governments to protect the public health and welfare of their citizens.

There is a wealth of research showing the negative economic, social, health, and environmental impacts suffered by people who live and/or work in or near CAFOs (see e.g., 2008 Pew report on industrial farm animal production in America). Additionally, intensive industrial agricultural operations such as CAFOs operate under woefully inadequate state and federal environmental regulations that fail to address public health and welfare impacts associated with their planning, siting, and operation.

Researchers from Johns Hopkins Bloomberg School of Public Health in the Department of Environmental Health and Engineering have provided an evidence-informed, expert perspective on the public health and environmental considerations stemming from industrial farm animal production that is highly relevant to local communities and policymakers in Arizona in this context (see attached March 18, 2021 letter). In short, myriad peer reviewed studies have consistently shown the following:

  • Significant amounts of toxins are released from CAFOs into the environment causing pollution to air, water, and soil.
  • For example, communities surrounding CAFOs are exposed to large amounts of gaseous pollutants such as ammonia, methane, volatile organic compounds, endotoxins, pathogens, and particulate matter.
  • This pollution, in turn, causes increased illness rates observed among people who live near them (see the American Public Health Association’s policy on imposing a moratorium on new and expanding CAFOs to protect public health).
  • The widespread, routine administration of antibiotics to keep animals alive in confinement increases the very deadly risk of antibiotic-resistant bacteria in both livestock and people.
  • Living near CAFOs has been linked to psychological distress and other public health problems
  • Property values decline and quality of life decreases significantly and consistently in areas near CAFOs.
  • Local economies suffer rather than improve as small-scale farming declines. A reduced property tax base limits local government ability to provide services.
  • With our current COVID crisis, this might be the most dangerous time in our state’s history to abandon our rural small farmers, businesses, and residents.

SB1448 would severely limit the power of local government to regulate these types of facilities and strip away their rights to protect public health and welfare, as well as their democratic rights of self-defense and self-determination. Creating more statutory protections for CAFOs to shield them from liability and responsibility for their negative impacts will not result in desired outcomes.  An industry that seeks to do this must be questioned.

Arizona residents are familiar with the problems caused by CAFOs. These are NOT “farms.” In Arizona, some confine hundreds of thousands of animals (sometimes millions) in unnatural environments. In the town of Maricopa in Pinal County, a coalition of residents once organized itself to try to address concerns about the air emissions and public health risks posed by the numerous CAFOs located within or near the city. “Cow Town” was identified by USEPA as one of the biggest air polluters in the state, as well as in the nation. In Tonopah in Maricopa County, an entire community has been impacted by a massive CAFO that local, state and federal laws and governmental regulatory agencies have failed. See the Right-to-Harm film for more information. These circumstances have left residents with very few viable options to protect themselves. Often, a nuisance action is the only mechanism people have to protect themselves.

While purporting to protect farming and farmland, U.S. right to farm laws impede private property rights and the capacity to file nuisance lawsuits. They disrupt the common law by tipping the scales in favor of big agribusiness and industrial agriculture, as opposed to protecting other kinds of more traditional farming operations, local business operations, and enjoyment of private property. The proposed right to farm amendment is emblematic of how powerful agribusiness interest groups dominate and overtake government and lawmaking at the expense of real people, real voters, and real independent family farmers. If enacted, Arizona will help advance market domination by extractive polluting agribusiness industries to the detriment of other farmers, rural communities, and the environment.

The CAFO industry has largely succeeded in escaping responsibility for its impacts by rolling back federal regulations and stripping away public access to information regarding CAFO pollution. Thus, as proposed in this bill, for Arizona to enact a presumption that an agricultural operation is not a nuisance if it’s operating in compliance with local, state, or federal laws is a misnomer.  Most industrial animal agricultural operations have successfully avoided any meaningful regulation to begin with. In effect, SB1448 will make it so an agricultural operation could be a significant polluter and still not be held accountable and liable, simply by arguing they are operating in compliance with nearly non-existent or weak laws.

SB1448 will have serious negative implications according to Arizona attorney, Howard Shanker. He states in the attached letter, dated March 20, 2021, that there is an unfortunate common theme with this bill:

(1) the legislation purports to take on a problem that does not exist; and

(2) the specific legislative language is not intended to protect agriculture from frivolous suits, but rather to allow agricultural facilities to operate with impunity.

This legislation is a shield for wrongdoing. It is not in the public interest and/or based on sound policy.  There are already sufficient protections in place to guard against frivolous litigation and the wrongful imposition of punitive damages (which is likely why the problem does not exist). This legislation does not serve its stated purpose.

The bill awards costs and fees to the prevailing party.  Generally fees are not available in tort actions.  This is because the prospect of having to pay a defendants’ fees could have a chilling effect on a plaintiff’s willingness to bring suit. The proposed language essentially shields agricultural operations from the prospect of having to pay punitive damages.  Not only would an operation have to meet the new statutory definition of “nuisance,” it would have to have been subject to a “criminal conviction or a civil enforcement action.”

It is unconscionable to require neighbors of CAFOs to risk up to hundreds of thousands of dollars in order to protect their health or property from damages caused by CAFOs, while protecting these operations from responsibility, especially in light of inadequate government regulations and enforcement. A similar rule has had a chilling effect on nuisance cases brought against large-scale livestock operations in Wisconsin since the enactment of this law in 2009.

Moreover, SB1448 could have negative public health and financial impacts on not only Arizona, but throughout the country. Yuma County is responsible for 90% of all leafy vegetables grown in the U.S. In 2018, there was an outbreak of E. coli in lettuce from a Yuma farm that sickened at least 210 people in 36 states and killed five. The FDA traced the E. coli strain to a water canal that irrigated the Yuma lettuce farm and suspect that a nearby CAFO caused the contamination.

Under SB1448 if a crop farm owner files a nuisance suit and wins the case, the court would not be allowed to award punitive damages unless the CAFO has already been criminally convicted or has had an enforcement action against it already. This would undercut already unenforced environmental health and safety laws. And if the crop farm owner loses the case, they would be forced to pay the CAFO’s costs and fees. Also, local government would be prohibited from declaring the CAFO a nuisance if the facility is considered in compliance with nonexistent and/or woefully inadequate laws. Thus Arizona communities will be unable to protect their residents from further damage.

At this very moment, communities all over the country are dealing with the implications of the poor choices made by their lawmakers having enacted similar misguided provisions disguised as protecting the “right to farm.” Corporate agribusinesses are the only real beneficiaries of these laws. Government needs to work for the people. Far more people will be negatively impacted by passing this legislation than those who will benefit from it. As such, we urge you to cast a “nay” vote on SB1448.

Respectfully:

Dan Mack
President of Board of Directors
Save Tonopah Oppose Poultry Plant (STOPP)
stoppboard@gmail.com
Tonopah, Arizona

Daniel E. Blackson
Tonopah, Arizona

Michael Wirth
Tempe, AZ

Sandy Bahr
Chapter Director
Sierra Club, Grand Canyon Chapter
Phoenix, AZ

Karen Michael
Secretary of Board of Directors
Animal Defense League of Arizona
Phoenix, AZ

John Rumpler
Environment America Clean Water Program Director
Environment Arizona
Mesa, AZ

Craig Watts
Director of Field Operations; Farmer and former contract grower for Perdue
Socially Responsible Agriculture Project
Golden, CO

Lynn Henning, Director of Field Operations
Farmer and Recipient of the 2010 Goldman Environmental Prize
Socially Responsible Agriculture Project
Golden, CO

Hannah Connor
Senior Attorney, Environmental Health
Center for Biological Diversity

Martha German
Member, Board of Directors
Humane Voters of Arizona
Phoenix, AZ

Dr. Loka Ashwood
Representative
One Rural Collective
Lexington, KY

Krissy Kasserman
Factory Farm Organizing Director
Food & Water Watch
Washington, DC

Patrick Kerrigan
Retail and Organic Standards Coordinator
Organic Consumers Association

Anna Mohr-Almeida
Founder
Kids Climate Action Network

Doug Bland
Executive Director
Arizona Interfaith Power and Light

Laura Dent
Executive Director
Chispa Arizona

Shelly Gordon
Arizonans for Community Choice
Mesa, AZ

Cecil F. Michael, Jr., MD
Pediatrician
Peoria, AZ

Linda Butler
Tonopah, AZ

Steven Love
Chino Valley, AZ

Lorna Proper
Arlington, AZ

Theron Proper
Arlington, AZ

Angela Renaud
Marengo, IA

Richard Renaud
Marengo, IA

Jane Magee
Tonopah, AZ

Fred Lillie
Tonopah, AZ

Steve Farley
Former Arizona State Legislator
Tucson, AZ

Deb Thompson
Retired Lieutenant, Phoenix Police Department
Former Director, Animal Cruelty Investigations, Maricopa CO Sheriff’s Office
Tucson, AZ

Nancy Young-Wright
Former Arizona State Legislator
Tucson, AZ

Marlee Stephens
Flagstaff Arts and Leadership Academy Environmental Coalition
Flagstaff, AZ

Dr. Brandon Burr
Director of Food Policy
Animal Wellness Action
Center for a Humane Economy
Scottsdale, AZ

Lauren Kuby
Councilmember
City of Tempe
Tempe, AZ

Dr. Kevin Gibson
Protect Our Water Arizona
Snowflake, AZ

Deborah Wilson MD
Gynecology, Advanced Laparoscopic Surgery
Director, Feathers Foundation and Circle L Ranch
Scottsdale, AZ

Cary Meister
Conservation Chair
Yuma Audubon Society
Yuma, AZ

Lain Kahlstrom
Director of State Affairs
Animal Wellness Action
Phoenix, AZ

Hazel Chandler
Arizona Chapter of Elders Climate Action
Phoenix, AZ

Sarah King
Flagstaff, AZ

Cyndi Tuell
Arizona and New Mexico Director
Western Watersheds Project