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PLAIN ECONOMIC SENSE for release after Oct. 19, 1998
Column 351
POLICY ALTERNATIVES AFTER IOWA'S SUPREME COURT DECISION ON RIGHT TO FARM
By Mark A. Edelman
Extension Public Policy Economist
Iowa State University Extension to Communities
All states have "right to farm" laws of one kind or another. These laws have reduced the economic risks and legal liabilities that sometimes occur when neighbors file lawsuits over odor, flies, noise and other objectionable spillovers from farming practices. On Sept. 23, the Iowa Supreme Court handed down a decision declaring one of Iowa's "right to farm" laws as unconstitutional. Now that the nuisance suit protection has been struck down, many Iowans are interested in examining the policy alternatives and consequences.
Option 1. Do Nothing. What are the likely consequences under the do nothing option? Some have predicted a rash of lawsuits. Such predictions are probably overblown. Most rural residents aren't likely to know which farmland has been covered by the unconstitutional nuisance suit protection and which hasn't. At least for now, the nuisance suit protections provided by other Iowa laws are still on the books. In addition, farmers still have frivolous lawsuit protections provided by in the Iowa code. Neighbors are not likely to file nuisance lawsuits unless they feel they have a legitimate claim.
An odor only becomes a nuisance when someone smells it. If the Iowa Supreme Court decision stands, economic incentives increase for using technology fixes and best management practices to reduce odor and other spillovers. In the long run, these behavioral changes will reduce the likelihood of lawsuits.
Iowa and most other states have passed separation distances and buffers between confinements and their neighbors. On a case-by- case basis, the courts may be asked to determine whether the distance requirements are adequate to prevent nuisances according to some yet to be determined standard. If nuisances are judged to exist, then future courts will side with neighboring plaintiffs. The legislature may have an interest in revising the separation distances for circumstances likely to create nuisances. If present separation distances are adequate, then the courts will be more likely to side with farmer defendants in any future cases.
Option 2. Compensation. A second alternative is for the Iowa legislature to revise the "right to farm" laws to conform with the supreme court's constitutional requirements. In a nutshell, the Iowa Supreme Court held there was no compensation and private property rights of the neighbors were taken away by state and county government actions. So the legislature could pass the same right to farm law and make it constitutional by adding an appropriate method of compensation for the neighbors when nuisance suit protection is provided.
A colleague, Professor Neil Harl, has advocated developing a market system for the purchase of odor easements on farmland surrounding confinements as a way to create buffers and appease the neighbors. Neighbors are less likely to bring lawsuits if they receive compensation or cheap manure to fertilize their crops. However, this approach could become increasingly costly for farmers in close proximity to urban areas or in rural areas where farms are mixed in with a large number of rural residences.
Option 3. Planning and Zoning. A third option is for state and local governments to use land use planning tools to keep farms separated from residential and other uses. This in fact was one of the main goals of the agricultural area law that was held unconstitutional. The only difference is that community planning and zoning authority is used accomplish the same objective. Exclusive zoning for agricultural uses, purchase of development rights, and urban growth boundaries represent examples of community planning tools used in some states to keep nonfarm development out of farming areas.
Zoning decisions are different from nuisance suit protection in that zoning decisions allow pre-existing incompatible uses to continue until use is changed. So if an expensive residence was there first, their property rights and ability to file nuisance suits continues. Zoning recognizes a priority of rights in time, whereas the nuisance suit protection provided an easement to those who potentially created objectionable smells regardless of which party was there first.
However, zoning solutions are not likely to receive universal support. Agriculture in Iowa has been exempt from local zoning authority for the past 50 years. About a fourth of the counties do not have county wide zoning. In spite of the agricultural exemption, some farmers have fought zoning all their life. What irony it would be for zoning to become the best tool for protecting their "rights to farm" in the future.
Edelman is a professor of economics and an extension public policy specialist at Iowa State University.
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