Bringing Big Ag’s Right to Harm to the U.S. Supreme Court

Richard Himsel and his family have been living on and enjoying the same home, on the same plot of land in the Indiana countryside, for generations. Richard’s parents built the house in Danville in the 1920s. He was born and raised there, went on to raise his own family there, and he is still there now, quietly living out his retirement with his wife, Janet. Over the years, Richard and his family have built additional structures on the property and made other valuable improvements. He and Janet have spent countless hours planting and maintaining their gardens, hosting friends and family, and enjoying their hard work and the home they built to enjoy with family. 

Having always lived in the countryside, Richard was used to residing close to traditional farms; one of the plots nearest the Himsel property has produced crops for the past century. In 2013, the neighbor who owns this land successfully re-zoned the property to allow for the construction of a concentrated animal feeding operation, or “CAFO.” Richard’s neighbor then leased this old cropland to a third party, who subsequently constructed a massive pig farm on the property. 

This factory farm now houses 8,000 pigs. On average, these pigs generate about four million gallons of waste per year—the same amount produced by a city of 32,000 people. All of this pig urine and excrement drops through the CAFO’s slatted floors, where it’s collected in giant lagoons and begins to break down, emitting toxic fumes. Because breathing in these chemical compounds would sicken the pigs, the facility walls were built with massive ventilation fans that blow the fumes directly onto the Himsel and other neighbors’ properties and into their homes. 

All of a sudden, Richard and Janet couldn’t breathe—even with their windows and doors shut. The noxious gases and overpowering smells sicken them and regularly prevent them from eating, sleeping, and carrying out the most basic daily activities. Janet’s doctor told her that continuing to breathe the air in and around their home will put her health at serious risk. Their children and grandchildren stopped visiting. Although this is the only home Richard has ever known, he and Janet made the painful decision to sell their property and move away, only to realize that this, too, was impossible, as its value had plummeted with the CAFO nearby. 

The Himsels’ lives, their attorney explained, “are completely upended and they can do nothing about it because. . . like for most folks, their home is their major life investment. They were planning to retire there. And they can’t go anywhere. No one’s going to buy their home. . . they’re essentially stuck in that situation, and it’s heartbreaking.”

After their neighbor, Richard’s distant cousin, Samuel Himsel, refused to intervene, the Himsels and the Lannons, another local couple who are similarly affected by the CAFO, decided they had no choice. So they got in touch with Kim Ferraro, Senior Staff Attorney for the Hoosier Environmental Council (HEC), and in 2015, they sued Samuel’s family and the CAFO leasing his land for the nuisance and trespass caused by the toxic particles being ventilated onto the Himsel and Lannon properties. Five years and six court decisions later, the couples are now bringing the case to the U.S. Supreme Court with the help of Harvard Law School’s Animal Law and Policy Clinic (ALPC), a program directed by veteran public interest lawyer Katherine Meyer. 

Their land

Most commercial industries in the U.S. are subject to strict environmental regulations governing air and water emissions. These industries are held accountable for the damage their manufacturing and processing operations cause to local families and neighboring landowners. Accordingly, U.S. nuisance and trespass doctrine has developed through case law as a way to address these conflicts between property owners. The remedies created thereunder are based on a long-held tenet of property law: that the right to use one’s land, including the right to profit via commercial use, shall not extend to unreasonably interfere with another’s right to use and enjoy their land. 

Of course, property rights are not immutable, and a landholder’s right to quiet enjoyment does not adhere to those who acquire property sited near an existing nuisance. In other words, landowners who “come to the nuisance” have no remedy, and rightfully so. But for decades, nuisance and trespass doctrine in Indiana, as in many other states, protected landowners from industrial, nuisance-causing encroachment—including that from agribusiness—when such encroachment was precipitated by a material change in the industrial facility’s operations.

All of that changed in 2005, when the Indiana legislature amended the state’s Right to Farm Act to effectively eliminate the availability of nuisance and trespass remedies to people like the Himsels and Lannons. The state accomplished this by declaring that changes to an existing farm’s type or size no longer constituted a “significant change” in operations that would have historically given rise to a valid nuisance claim. It’s difficult to imagine a more significant transformation than converting cropland to an 8,000-pig factory farm, and it’s unclear what type or degree of change, if any, the state envisioned as actually meeting this standard. 

The impact on families like the Plaintiffs has been life-altering. The Himsels have spent five painful years traveling bleakly through the legal system, fighting for some semblance of a return to normalcy while Janet struggles with the implications to her health. The courts have thus far been unpersuaded by their arguments, despite the fact that the neighboring pig CAFO was negligently permitted, and the 2005 amendment contains an exemption for such negligence.

The constitutional “right” to farm

Right to Farm statutes began to proliferate around the U.S. in the last quarter of the 1900s (Indiana’s original statute was passed in 1981) with the claimed intent of combating urban sprawl and protecting the state’s food supply from undue restriction. Though there are state-by-state variations, the true, underlying aim of almost all Right to Farm statutes is to provide Big Ag with prioritized rights explicitly provided to corporate entities to freely pollute the surrounding environment. In doing so, legislatures have essentially acknowledged that raising animals for food using conventional, intensive practices—94 percent of statutory Right to Farm protections benefit livestock producers specifically—is environmentally destructive and oppressive to local landowners’ rights. These rights would likely be protected by the state if they were violated by any other industry. 

Some of the industry’s most insidious societal impacts, such as environmental pollution, are borne disproportionately by people of color, compounding the health crisis already faced by Black and brown communities who are marginalized and mistreated by a racist healthcare system.

In the decades since, a trend toward state Right to Farm constitutional amendments, which provide an even broader constitutional “right” to farm, and broadly drafted statutes like Indiana’s have fundamentally altered the balance of power in favor of Big Ag. As the industry has further consolidated and exploited economies of scale, with fewer producers controlling more and more animals, Big Ag’s commercial interests have increasingly clashed with constituents’ civil rights and quality of life protections, which necessarily include access to clean air and water and stable property values. While the Himsels and Lannons are white, some of the industry’s most insidious societal impacts, such as environmental pollution, are borne disproportionately by people of color, compounding the health crisis already faced by Black and brown communities who are marginalized and mistreated by a racist healthcare system.

Yet state and federal lawmakers in agriculture-heavy jurisdictions have repeatedly responded to the ambitions and profit-maximizing objectives of Big Ag by restricting local control over land use and community planning and dealing blow after blow to the environmental protections that would otherwise prevent factory farms from harming local residents and the environment with impunity. This is the natural consequence of the willingness of the animal agriculture industry to spend freely to secure desired policy wins from politicians combined with early recognition of the profitability of a vertically integrated business model. No other industry enjoys such broad policy benefits. To Ferraro, Indiana’s 2005 amendment is indeed an example of the ever-growing problem that Big Ag “has entirely too much control and influence at all levels of government.” 

In the Himsels’ case, the lower courts’ decisions have effectively ignored decades of precedent for handling nuisance and trespass matters in Indiana—precedent that has repeatedly held that similar nuisances, caused by other noxious odors and substances, to be actionable and recoverable when created by any other type of facility, including landfills and wastewater treatment plants. This is, as Ferraro puts it, “a carve-out that’s completely unfair. . .what sort of a society do we live in, [where officials refuse] to protect our fellow human beings from [that]?” 

At what cost

Because the law has stripped rural Indiana landowners of the ability to protect their property rights, those rights are no longer considered in public decision-making, which in turn has made rural residents expendable, both within society and in the eyes of the law. And by accomplishing that, Ferraro says, Big Ag “has literally turned our rural communities into dumping grounds.” 

Despite lawmakers’ proclamations in support of the “family farmer,” rural small farmers are just as vulnerable to the negative impacts of Right to Farm policies as non-farming residents, a fact exemplified in the language used: the vast majority of current Right to Farm statutes were drafted using terms that prioritize the right to profit versus the right to work or labor one’s own land. Commercial production is the distinguishing characteristic used to define what a farm is—and therefore who is eligible for Right to Farm protections—in 90 percent of these statutes. Prioritizing protections for industrial operations over small farmers is yet another source of decline to the rural way of life and the livelihoods of small farmers. These farmers are simultaneously struggling against a multitude of odds working against them: fiscal policies favoring consolidation by vertically integrated multinational producers, an uptick in extreme weather events exacerbated by climate change, CAFO-polluted water sources, and the current administration’s harmful foreign trade policies. These trade policies have in turn resulted in billions of dollars in losses in the last year alone. 

While the Himsels and Lannons are lucky enough to be represented by the HEC on a pro bono basis, the financial, personal, and community costs of bringing a case like this render it out of reach for most American families. Pro bono support at this level is rare; the Plaintiffs’ attorneys’ fees alone would have cost them well over half a million dollars. The necessary expert and deposition fees have run up another $100,000. In addition to up-front expenses, affected landowners must contend with the risk of potential financial ruin if they lose—approximately one-third of state Right to Farm laws require unsuccessful plaintiffs to pay the defendant’s attorney fees. These states do not provide the same reciprocation to the plaintiffs should they prevail, further discouraging families from suing intensive animal producers for nuisance and/or trespass. The intended and actual result of these policies has been a measurable suppression—a chilling effect—of the number of claims brought by rural families since enactment.

There are also community costs to consider. Residents who speak out against massive factory farms popping up in their hometowns are often vilified. In the Himsel case, hundreds of residents attended zoning hearings to oppose the farm’s change in designation from “Agriculture Residential” to “Agriculture Intense.” The local planning board was not moved, and residents’ concerns were mocked as exaggerated claims about mere “smells,” despite the large body of empirical evidence showing critical health impacts from prolonged exposure to these dangerous compounds. The personal and relationship costs inherent in agricultural nuisance cases are equally significant. “People who had been long-standing neighbors [and] friends no longer communicated. It creates a huge social rift within these communities, and this situation is not unique,” said Ferraro. 

This was one of the reasons ALPC decided to take the case. When Meyer first heard the Plaintiffs’ stories, they resonated strongly with her: “I was picturing these poor families living in this bucolic setting for decades, [having] retired there, and they can’t even go out in the morning and enjoy a cup of coffee in their garden or have their grandchildren come over. I totally related to that—I’ve lived in my house for 35 years. I totally related to the situation. [I felt] this was not fair, and we have to do something.” Whether that something will be enough for the Himsels and the Lannons now rests on the U.S. Supreme Court’s decision to take up the case (the Court is expected to take up the matter in conference as soon as next week); it appears unlikely that the Indiana legislature will overturn the 2005 amendment any time soon.

But when discussing the future of overly broad Right to Farm laws, Ferraro is optimistic. “We’re seeing more and more people care very deeply about this, and a growing movement for change…[for not] allowing [politicians] to serve special interests at the expense of everyday people.”

Meyer agrees. “In the end, it’s gonna be a matter of public education, and more and more people becoming outraged about the situation and demanding that something be done about it.”

Update: On October 7th, 2020, the U.S. Supreme Court issued an order denying the Plaintiffs’ petition for review in this case. The order effectively upholds the 2019 Indiana Court of Appeals decision that the state’s Right to Farm Act precludes the couples’ recovery.