Academic journal article Vanderbilt Law Review

Managing Manure: Using Good Neighbor Agreements to Regulate Pollution from Agricultural Production

Academic journal article Vanderbilt Law Review

Managing Manure: Using Good Neighbor Agreements to Regulate Pollution from Agricultural Production

Article excerpt

I. INTRODUCTION

In an episode of the popular television series Seinfeld, George Costanza narrowly avoids stepping in a pile of horse manure and emphatically declares, "[M]anure's not that bad. I don't even mind the word 'manure.' You know, it's, it's 'nure,' which is good and a 'ma' in front of it. MA-NURE. When you consider the other choices, 'manure' is actually pretty refreshing."1

Not everyone shares George's enthusiasm for animal excrement. Agricultural waste has been a source of community distress for generations. In 1932, a California appellate court determined that a dairy, hog-raising, and cattle-raising operation constituted a nuisance under state law.2 The offending farm rested on eighty acres of land across the highway from the plaintiff.3 Although farmer Howard Cook was engaged in a lawful and ordinary business, according to the court, the manure that his forty-six cows and herd of pigs produced "so befouled the atmosphere as to interfere with the use, comfort and enjoyment of the [plaintiffs] property."4 The court also was convinced that "breeding cows [next to] the highway" constituted a nuisance.5 Relying on nuisance cases involving air pollution from factories, laundromats, and gas companies, the court clarified California law by concluding that it is "not necessary that the health of [the plaintiff] or members of his household ... be impaired. It is sufficient if the odors [and] sounds . . . were offensive to the senses."6 The court enjoined Cook from continuing the nuisance and suggested that he move the offensive activity to a more remote location on his property.7 Unfortunately for Mr. Cook, such a holding required that he either stop farming altogether or tear down his facilities and rebuild his operation in a location farther from the road. As a result of the nuisance suit, an offensive odor caused by a small herd of cattle and pigs placed Mr. Cook's entire farm in jeopardy.

While public perception of agricultural waste has not improved since Cook v. Hatcher, the agriculture industry has changed significantly. In 1880, twenty-two million people lived on farms; today, fewer than five million people do.8 Although the number of farms has declined drastically, average farm size has actually increased; the top twenty percent of productive farms account for ninety percent of all farm output.9 Many of these large-scale farms are concentrated animal feeding operations ("CAFOs"), which are farms that accommodate a sizable number of animals.10 Because of the growing number of CAFOs in the United States, American agriculture has maintained its productivity despite a decreasing number of farms nationwide. The agriculture industry contributes more than one trillion dollars to the U.S. economy, constitutes more than thirteen percent of the nation's gross domestic product, and employs approximately seventeen percent of the country's labor force.11

Large-scale farming has benefited the international community as well. Between 1961 and 1993, the global population increased by eighty percent.12 Total cropland grew by only eight percent, but the global per capita food supply increased by twenty percent.13 As a result of employing intensive farming techniques, such as using fertilizers and irrigation, agricultural productivity increased14 and the number of malnourished people worldwide decreased substantially.

In spite of its contribution to the American economy and the global food supply, American agriculture faces a dilemma not unlike that with which Cook dealt seventy-five years ago: an increasing number of nuisance suits against farmers. Much of America's farmland rated "prime" for agricultural production is also highly amenable to residential development.15 Farmers who refuse to sell their land to real estate developers for a high profit may find themselves at the receiving end of a nuisance suit when new neighbors who move to the area find the fragrance of farming at odds with their personal tastes. …

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