CAFO law would hurt recourse, organization says

Legal damages would be limited for neighbors

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A law under consideration in the Legislature threatens to further limit the recourse of Iowans suffering the ill effects of neighboring livestock confinements, the Iowa Policy Project warned on Wednesday.

The legislation, as approved last week by the Iowa Senate, limits damages that a neighbor may recover if harmed by a nearby operation, said David Osterberg, environmental researcher for the not-for-profit IPP and co-author of a new report with James Merchant, professor emeritus and former dean of the UI College of Public Health.

Its companion bill pending in the House further penalizes neighbors who fail in court by requiring that they pay the operation’s legal fees, Osterberg said.

As the bill states, it is intended to enhance “the fundamental role of animal agriculture by providing a reasonable level of protection (to livestock producers) from certain types of nuisance actions.”

It would limit “court actions involving an allegation of a public or private nuisance or the interference with a person’s comfortable use and enjoyment of life or property caused by an animal feeding operation.”

The proposed law specifies three types of damages — loss of property value, health impairments and compensatory special damages. While the first two would not be affected, damages in the third category would be capped at 1.5 times the combined damages in the first two categories.

West Des Moines attorney Eldon McAfee, who represents the Iowa Pork Producers Association and the Iowa Cattlemen’s Association, both of which have endorsed the proposed law, said he knows of at least eight active nuisance lawsuits involving Iowa livestock producers.

“There were 15 such suits a year ago — the most that I’ve seen since 2003,” McAfee said.

Those recent suits compare with “hardly any two to three years ago,” he said.

McAfee said he does not believe that the increase in nuisance suits corresponds with any increase in the number of confinements being built.

Because nuisance lawsuits are expensive and time-consuming, McAfee said he advises clients to talk with neighbors and eliminate potential points of contention before proceeding with new or expanded facilities.

“This bill would discourage neighbors from filing legitimate nuisance suits and make it harder for them to win,” said Diane Rosenberg, executive director of Jefferson County Farmers and Neighbors.

The reduced threat of nuisance lawsuits also would reduce their effectiveness as a deterrent to ill-considered siting decisions, she said.

The proposed weakening of the nuisance law threatens CAFO neighbors’ main recourse for damages caused by proximity to the concentrated animal feeding operation, or CAFO, Osterberg said.

The report notes that the legal definition of a nuisance coincides with the broad definition of public health, which not only includes severe personal health issues but also evidence of irritation and annoyance, and loss of enjoyment of one’s home, property and community.

The paper cites reports examining the health impacts that emerge from proximity to CAFOs, from sensation of irritation, mental and/or physical discomfort, and annoyance — such as a foul odor that results in nausea.

Documented activities impacting “beneficial use of property” and “quiet enjoyment of life” included “working outside, growing vegetables, sitting outside, eating outside, gardening, playing, barbecuing, use of well water, sleeping, opening doors and windows, hanging out with neighbors, having family and guests over, and drying laundry among others.”

A study conducted in Iowa found a high prevalence of asthma among rural children living on swine farms. Another that found a significantly higher level of doctor-diagnosed asthma among children attending school within a half-mile of a CAFO than in children attending school over 10 miles from a CAFO.

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