Saturday, October 25, 2014

How to protect the rights of the farmer: right-to-farm statues vs. constitutional amendments

At the time of the founding of the United States, ours was a nation of small family farmers. Farming was seen as a noble and self-reliant occupation. Farming was a way of life.

However, the founding of the United States was more than 200 years ago, and things have changed. Now, large scale agribusiness produces the food that feeds the nation. The number of actual farmers has considerably decreased as a result of advanced technology. In the late 1880s and early 1890s the substantial number of farmers had a political counterpart in the tremendous amount of power that those farmers yielded in politics. That is to say, many early agricultural programs contained laws that catered to farmers, like the Homestead Act. As the sheer number of farmers has declined, so has the farmers' share of power within the government system. What are farmers doing to protect their legal rights in the face of declining political power?

Recently, Missouri farmers attempted to assert the priority of their prerogatives by raising the rights of farmers to a constitutional level. Following in North Dakota’s footsteps, Missouri farmers aggressively lobbied voters to change the state constitution to include a right to farm amendment. The amendment was approved on August 5, 2014, and added the following to the Missouri constitution:

Section 35. That agriculture which provides food, energy, health benefits, and security is the foundation and stabilizing force of Missouri's economy. To protect this vital sector of Missouri's economy, the right of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state, subject to duly authorized powers, if any, conferred by article VI of the Constitution of Missouri.

The language of the amendment seems extremely vague and raises doubts over whether the constitutional provision will adequately protect farmers' rights. In fact, it is absolutely possible that the very amendment that farmers thought would protect their right to farm could actually be used to regulate their activities. For example, it is easy to imagine that an environmentalist group would seek an injunctive order against a farm for releasing excessive amounts of methane from cows. This hypothetical environmentalist group could argue in court that the farming practices directly affect the quality of air and rainfall, impairing the ability of future farmers to grow crops. Under the new Missouri amendment, which “forever guaranteed”…“the right of farmers and ranchers to engage in farming and ranching ”, practices that do not conserve the environment so that future generations can farm are unconstitutional and subject to censorship. In short, the constitutional amendment can be used as a weapon against farmers instead of as a shield.

Missouri’s constitutional amendment may have been influenced by right-to-farm statutes, which most states in the nation have enacted to protect farms from non-rural encroachment. Right-to-farm statutes provide a defense from nuisance claims against agricultural activities predating (usually by a year) the nuisance suit. That means that when non-rural folk – either private landowners or large business – move into an area where farming or ranching practices have already been established, the farmers and ranchers are protected from lawsuits complaining about the smell of the animals/degradation of the land/treatment of the cows/ect. The important thing to notice is that the right-to-farm statutes is a defense that farmers and ranchers invoke once a nuisance suit is filed. This is markedly different from a constitutional amendment, which can be used as the basis of an affirmative complaint to challenge farming practices. In effect, right-to-farm statutes provide farmers the shield that they are looking for. The statutes create much less of a risk that they will be used as a sword against farmers, unlike Missouri’s constitutional amendment.

In conclusions, Missouri and any other states looking to enshrine a right to farm in the constitution may be making a big mistake. Right-to-farm statutes already provided for the protection of farmers. Only time will tell if the constitutional amendment will provide the additional protection that farmers sought or if the whole effort completely backfires by giving groups a constitutional basis to challenge farming practices.


Tiffanie said...

Very enlightening post. I agree that Missouri's constitutional amendment is problematic, largely because it is so vague. For example, who exactly are “farmers and ranchers?” Does this extend to large corporations? Additionally, what do "farming and ranching" practices really encompass? This will require a lot of judicial interpretation down the road. Further, depending on who “farmers and ranchers” are, it seems like this amendment not only protects small farmers, but large industrial farms. Potentially, large industrial farms could use this amendment to allow them to pollute the environment and treat their animals however they want, including using antibiotics on animals. Under this amendment, they could try to claim that they should be allowed to do this because it falls under "farming and ranching practices." Essentially, this amendment could be used as a way to get around current laws. Consequently, small farmers may suffer from this amendment rather than gain the protections they desired.

Kate Hanley said...

Very, very interesting. Has there been any movement in North Dakota to use the constitutional amendment against current farming practices, or is this a (very reasonable) speculation on what future challenges states like North Dakota and Missouri may see?