CAFOs and U.S. Law

Abstract

One noticeable result of the industrialization of American agriculture over the past half-century is the proliferation of large concentrated animal feeding operations (CAFOs) in many farm states. CAFOs are particularly popular in modern swine production. This Essay examines the regulation of CAFOs to protect against potential threats to public health, to preserve environmental quality, and to prevent neighboring landowners from having to suffer the detrimental effects of the high levels of water and air pollution CAFOs can generate. Most of the potential water and air pollution escaping from CAFOs today is caused by the universal use of an environmentally unsatisfactory method for disposing of the massive amounts of animal wastes CAFOs produce. Under this method, animal wastes are simply collected in a large outdoor storage basin (euphemistically called a “lagoon”), where they gradually decompose. Periodically a liquid slurry is removed from the lagoon and spread on nearby fields as natural fertilizer. This crude waste disposal method was outlawed for human wastes in the middle of the 20th Century, but it has become the standard method for CAFOs to dispose of animal wastes, and it is regularly approved as a prudent and reasonable waste disposal practice by federal and state environmental regulators.

The Essay confirms the widely recognized reality that existing federal, state and local regulatory regimes are simply inadequate to prevent the type of serious harms the waste disposal practices of CAFOs can inflict on neighboring rural residences and farmsteads. In states like Iowa and North Carolina, the nation’s two leading hog producers, initiating private nuisance actions has become the only viable recourse for CAFO neighbors to prevent or remedy these vexing harms. Even this line of legal protection is under attack legislatively in states eager to compete more effectively for greater business from the hog industry. For example, both Iowa and North Carolina have recently upgraded their traditional Right- to- Farm laws to add special provisions designed to insulate CAFOs from neighbors’ nuisance claims. Litigation underway to construe these new laws and to challenge their constitutionality is described and analyzed in this Essay.

Keywords: CAFOs, nuissance law, air pollution, water pollution, environmental regulation, agricultural law