Here We Go Again: A Third Legislative Attempt to Protect Polluting Iowa CAFOs from Neighbors’ Nuisance Actions
36 Pages Posted: 15 Mar 2018 Last revised: 17 Jan 2019
Date Written: March 14, 2018
Twice during the past twenty years the Iowa Supreme Court struck down attempts by the Iowa General Assembly to grant confined animal feeding operations (CAFOs) immunity from liability for nuisance harms inflicted upon their neighbors. In both cases the challenged statutes were found by the Court to be regulatory takings – unconstitutional extinguishment of neighbors’ private property rights without just compensation.
In April, 2017 the Iowa General Assembly tried for a third time to confer on Iowa CAFOs a privileged status in state nuisance law. New Iowa Code 657.11A, however, did not try a third time to grant CAFOs immunity from nuisance suits. Instead, it provided for caps on the compensatory damages a winning plaintiff could be awarded against a CAFO found to be causing a legal nuisance. The new compensatory damages caps are not seriously inconsistent with conventional Iowa nuisance law, but at several points Iowa Code 657.11A raises puzzling questions about exactly how the legislature intended the new law to operate.
This essay reviews the background of Iowa Code 657.11A, closely examines the wording of the new law, and suggests how various interpretations of its terms might lead an Iowa court to rule differently on its constitutionality. Also discussed are a couple of novel provisions in the new law that are seemingly inconsistent with traditional Iowa nuisance law and with longstanding Iowa law governing joint ownerships.
Keywords: Real Property Law, Nuisance Law, Compensatory Damages Caps, "Takings Law", Agricultural Law, Permanent Nuisances, Easements, Special Damages, State Constitutional Law
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