The information contained in this document is provided for educational purposes only. It is not legal advice, and is not a
substitute for the potential need to consult with a competent attorney licensed to practice law in the appropriate jurisdiction.
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State Right-to-Farm Provisions
Alexandra Lizano
Research Fellow, National Agricultural Law Center
Rusty Rumley
Senior Staff Attorney, National Agricultural Law Center
All fiy states have enacted right-to-farm statutes. These laws are
meant to protect farmers from nuisance lawsuits in the case where an
individual moves to an area where a farming operaon previously
exists or in cases where the farm has existed for a period of me
substanally unchanged before the lawsuit is filed. In earlier nuisance
suits, defendant farmers saw mixed success defending these nuisance
claims with the common law defense that the plainff “came to the
nuisance.” As a result, legislatures have responded and provided
statutory protecon to farmers to provide a defense to nuisance suits
of this kind. These statutes are referred to as right-to-farm statutes. It
is important to note that while all fiy states have enacted right-to-
farm statutes that there exists substanal variaon across the country
and the purpose of this paper is to give a broad overview of some of
the major trends in this type of legislaon.
Triggering Event
A triggering event is an event that causes or triggers grounds to invoke
the right-to-farm statute as a defense to a nuisance lawsuit. Three
triggering events have been idenfied for the purposes of this project:
(1) Statutes of repose, (2) Being first in me, and/or (3) An area zoned
for agriculture.
A statute of repose is wrien so that an
agricultural or farming operaon shall not
become a nuisance aer it has been in
operaon for a certain period of me. This
period of me is typically between one and
three years.
2019
Triggering Event
Statutes of repose:
25 states
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A first in me provision means that a farming operaon will not be
deemed a nuisance so long as it was first in me. Usually, this refers to
the farming operaon being established before one or more of the uses
on surrounding land.
The area zoned for agriculture triggering event refers to whether the
farming operaon is required to be within an area that has been
formally zoned for agriculture.
Change in the Operaon
Half of the states have a provision in the right-to-farm statute that idenfy whether or not a change in
the farming operaon will have an effect on the farm’s ability to be considered a nuisance.
Change in operaon provisions are structured differently per state, states that have structured the
provision similarly are grouped as follows:
• Certain changes in operation like ownership,
technology, methods of production, or the product itself
product are not considered “changes” that would
subject a farming operation to liability.
• Other states permit changes such as an expansion of the
operation and allow those changes to retain the
commencement date of the original operation in
assessing whether a nuisance claim can be brought.
• A different group of states provide that if there are
“substantial changes” to the farming operation, then the
right-to-farm nuisance exception does not apply to those
changes.
• Some states do not allow “reasonable expansion” to
constitute a nuisance. Both of these statutory provisions
give examples or define what is considered “reasonable”
or not reasonable.
Triggering Event
First in time provision:
19 states
Triggering Event
Area zoned for agriculture:
9 states
Change in Operation
Enumerated changes
approach: 5 states
Change in Operation
Permit expansions and
retain original date: 4
states
Change in Operation
“Substantial changes”
ineligibility: 6 states
Change in Operation
Reasonable expansion
exception: 2 states
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• Other states provide that if there is a change in operation
such as an expansion, the date of commencement for the
operation changes as well.
• Finally, some allow for changes in operation to not be
considered a nuisance so long as all other applicable laws in
the jurisdiction are being followed.
Limitaon on Protecons
There are various limitaons on the protecons provided by right-to-farm statutes. Some states condion
nuisance protecon under right-to-farm statutes on the farming operaon’s compliance with state and
federal laws and if the operaon is following good agricultural pracce. Also, if the health and safety of
the public is implicated, some states do not allow for nuisance suit protecon under right-to-farm laws.
The vast majority of states have provisions that limit the protecon of the right-to-farm statute. These
limitaons fall into at least one of the following categories.
• Compliance with State and Federal Laws: The farming operation
must be compliant with the applicable state and federal laws, the
right-to-farm nuisance suit protection would not apply.
• Following Good Agricultural Practice: Various states’ right-to-farm
laws are only applicable to farms following good agricultural
practices. Some states may specifically define what is considered
good agricultural practice, other states have provisions that
generally require the farming operation to comply with good
agricultural practices as required by industry customs.
• Public Health and Safety: If the farming operation has an adverse
effect on public health and safety, the operation may be
considered a nuisance.
Preempon of Local Government Acons
Some right-to-farm statutes have a provision that explicitly allows the
right-to-farm to preempt any local government acons or ordinances that
may conflict with the right-to-farm statute.
Change in Operation
If expansions, date of
commencement changes: 4
states
Change in Operation
Compliance with other
laws: 2 states
Limitation on Protections
Compliance with state &
federal laws: 27 states
Limitation on Protections
Following good agricultural
practice: 26 states
Limitation on Protections
Public health and safety: 15
states
Preemption of Local
Government Action
21 states
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Aorney’s Fees Awarded
Fieen states contain a provision in the right-to-farm statute that awards
aorneys’ fees. Some will award aorneys’ fees to the defendant farming
operaon if the nuisance suit is deemed to be frivolous, malicious, and/or
the defendant farming operaon can prevail in proving that the operaon
was not a nuisance.
Other statutes provide that the prevailing party can be awarded aorney’s fees. These states do not
specify that only the defendant if prevailing can be awarded fees.
Damage Caps
Very few right-to-farm statutes provide specific damage caps by the statute
itself. These provisions limit the amount of money that can be obtained in
compensatory damages. Each of these statutes provides specific formulas
that cap the amount of damages that can be recovered. Many of these
caps may not be found with the right-to-farm statutes and in some states
the constuonality of these caps may be in queson.
Attorney’s Fees
15 states
Damage Caps
7 states impose damage
caps through the state’s
right-to-farm statute
