A Private Solution for CAFO Nuisances
As I have repeatedly said, civil lawsuits — not zoning ordinances — are the best solution to nuisances caused by a property owner’s use of land. It just so happens that events in the western part of the state provide a handy case study in how this is supposed to work.
In 1998, a concentrated animal feeding operation (CAFO) began operations in Cedar County near property owned by Ed and Ruth McEowen. The odors from the hog farm’s operations dramatically impacted the McEowens’ ability to enjoy their home, and the farm also polluted a creek that ran across their property. In 2005, the couple sued several entities responsible for the CAFO, and last week the suit was settled for $1.1 million dollars. That payment only addresses the problems caused from 1998 to the date of the settlement, so if the CAFO continues to operate in such a way that it disturbs the McEowens, they retain the right to file a new lawsuit. The Kansas City Star reports that there are currently about 400 similar nuisance lawsuits pending all over Missouri.
When the government imposes restrictions on property use, they are usually painted with broad strokes, prohibiting a variety of uses that might not result in any harm. The potential uses that are permitted are frequently governed by a set of standards that impose strict limits on what must be done in order for that use to be permissible. Such stringent, one-size-fits-all prescriptions inhibit innovation, and they make the mistake of assuming that non-compliance will be detrimental, whether or not this is actually the case. Furthermore, if a private property owner, such as a CAFO, violates this sort of governmental regulation, the government is strictly responsible for its enforcement, and if there is to be any financial punishment for such a violation, the government will usually be the beneficiary. Any citizens that have been negatively affected by another’s use of their property are not likely to be compensated for the inconvenience they have suffered.
A policy that relies upon civil lawsuits to address private nuisances, however, has several advantages. It results in a system in which property owners have tremendous freedom to pursue their business — perhaps in innovative ways — while still holding them accountable for any harm that their actions might cause to their neighbors. The neighbors, on the other hand, would have a way to defend the quiet enjoyment of their own property by demanding financial compensation for any harm they might suffer. (For anyone concerned about a neighbor’s ability to afford legal representation, let me assure you that many attorneys would leap at the chance to take a case like this on a contingency basis — 30 percent of $1.1 million is a lot of money.)
The ultimate result is that property owners would have a very powerful incentive to cooperate with their neighbors and to avoid disturbing their neighbors’ enjoyment of their property, while still retaining the freedom to make beneficial use of their own.