Hb 1150: Freedom to Farm Act

• Jurisdiction: Georgia,United States
• Citation: Vol. 39 No. 1
• Publication year: 2022
• topic: Environmental Law,Civil Procedure

HB 1150: Freedom to Farm Act

Wyatt Bazrod

wbazrod1@student.gsu.edu

Sarah Page

sjones65@student.gsu.edu

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NUISANCES

General Provisions: Amend Article 7 of Chapter 1 of Title 41 of the Official Code of Georgia Annotated, Relating to Treatment of Agricultural Facilities and Operations and Forest Land as Nuisances, so as to Provide for Legislative Intent; Provide for and Remove Definitions; Limit the Circumstances Under Which Agricultural Facilities and Operations May be Sued for a Nuisance; Provide for a Short Title; Provide for Related Matters; Repeal Conflicting Laws; and for Other Purposes

Code Section: O.C.G.A. § 41-1-7 (amended)

Bill Number: HB 1150

Act Number: 598

Georgia Laws: 2022 Ga. Laws 87

Effective Date: July 1, 2022

Summary: The Act protects agricultural facilities, agricultural operations, and forest landowners from nuisance lawsuits after two years of operation. if a facility converts to a confined animal feeding operation, the two-year time period restarts.

History

When the dust, noise, and smells of farming combine with a swelling population of citizens unfamiliar with farming practices, the ground becomes fertile for a nuisance lawsuit. In 2020, 352,000 Georgians were employed in the agriculture industry, and agribusiness contributed $69.4 billion to the state's economy.¹ Farming, however, is not the only successful industry in Georgia. Large corporations have relocated or opened facilities in the state, bringing an influx of new

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residents.² In fact, Georgia's population is growing "more than 1.5 times that of the U.S. population" with a ten-year growth rate of 14.4%.³

Initially passed in 1980, Georgia's right-to-farm law aimed to shield agricultural land users from nuisance actions.⁴ A key provision, the "changed conditions" provision, provided that "[n]o agricultural or farming operation . . . shall be or shall become a nuisance . . . as a result of changed conditions in or around the locality of such agricultural or farming operation."⁵ Through this provision, the legislature intended to protect agricultural facilities when they grew, changed operations, or when conditions outside the facility changed.⁶ The law granted nuisance-lawsuit protection for facilities once they operated for at least one year.⁷

In 1988, the Georgia General Assembly amended the law to clarify which facilities receive nuisance suit protection by defining "agricultural operation" and "agricultural facility."⁸ The 1988 amendment also provided that expansions or technological changes at established facilities would not restart the one-year clock, allowing established facilities to retain their protections.⁹

In 2002, the legislature defined "changed conditions" to mean: "(A) [a]ny change in the use of land in an agricultural area; (B) [a]n increase in the magnitude of an existing use of land in or around the locality of an agricultural facility . . .; or (C) [t]he construction or location of land improvements "in or around the locality of an agricultural facility" and is closer to the agricultural facility than when the agricultural operation or facility operated within its first year.¹⁰ This definition clarified the existing principle that an agricultural facility

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could not be considered a nuisance due to changed conditions on or off premises.¹¹

In 2004, legislators further amended the law by broadening nuisance protections for agricultural operations and extending protections to agricultural support facilities and forest land and operations.¹² The law defined "[a]gricultural support facility" as "any food processing plant or forest products processing plant together with all related or ancillary activities, including trucking."¹³ Food processing plants and forest products processing plants are commercial operations that "manufacture[], package[], label[], distribute[], or store[]" food and forest products, respectively.¹⁴ In 2007, legislators extended the definition of "[f]orest products processing plant" to include a commercial operation "that manufactures, packages, labels, distributes, or stores any building material made from gypsum rock."¹⁵

A 2017 nuisance suit in North Carolina, in which a federal jury awarded $50 million to the neighbors of a hog farm, prompted amendments to right-to-farm laws across the country.¹⁶ Farm bureaus and agribusiness organizations began lobbying for more protective measures, prompting Georgia legislators to discuss revisions to Georgia's law.¹⁷ In 2019, Representative Tom McCall (R-33rd) introduced House Bill (HB) 545, sponsored by Representative Robert Dickey (R-140th), to amend Code section 41-1-7.¹⁸ The amendment removed the changed conditions provision to give agricultural facilities broader protection.¹⁹ After additional revisions, the bill passed in the House but stalled in the Senate.²⁰ Legislators and small-

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scale farmers cited concerns that the bill would protect large industrialized operations at the expense of small family farms.²¹

In 2022, Representative Dickey introduced House Bill (HB) 1150, the Freedom to Farm Act.²² When introducing the bill on the House floor, Representative Dickey emphasized that it was created to protect family—not industrial—farms and that the bill "is about keeping neighbors out of lawsuits."²³

The bill was drafted to strengthen protections from nuisance suits to encourage the development and improvement of the agriculture industry by "remov[ing] the concept of changed conditions."²⁴ In other states, changed conditions led to ambiguities about whether a condition was changed such that it triggered the law's protection.²⁵ The bill would also protect urban farms—which were effectively excluded under prior versions of the law—in instances where a farm established new facilities in already developed areas.²⁶ To allay fears that the bill would prioritize protection for industrial farms at the expense of family farms, the bill included a provision that resets the time to bring a suit if a farm converts to a confined animal feeding operation (CAFO).²⁷ The bill's initial draft preserved the one-year time frame.²⁸

The bill received wide support from House Majority Leader Jon Burns (R-159th), House Speaker David Ralston (R-7th), Senate leadership, and Governor Brian Kemp (R).²⁹ Other bill champions included the Georgia Farm Bureau, Georgia Poultry Federation, Georgia Cattleman's Association, and Georgia Agribusiness Council.³⁰

The bill's opponents included lawmakers, farmers, and the Southern Environmental Law Center.³¹ Opponents argued the bill attempted to

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fix a problem that did not exist—lawsuits putting farmers out of business.³² Opponents argued that few nuisance suits have been filed against farmers in Georgia and that the bill's supporters could not cite a single farm that had been put out of business due to a nuisance suit.³³ They were also concerned the bill created a problem for existing landowners by removing protections for those "who w[ere] there first."³⁴

Bill Tracking of HB 1150

Consideration and Passage by the House

Representatives Robert Dickey (R-140th), Sam Watson (R-172nd), Terry England (R-116th), Rick Jasperse (R-11th), Clay Pirkle (R-155th), and Beth Camp (R-131st) sponsored HB 1150 in the House of Representatives.³⁵ Representative Dickey placed the bill into the House hopper on February 1, 2022.³⁶ The House read the bill for the first time on February 2, 2022, and a second time on February 3, 2022.³⁷ Thereafter, the House assigned the bill to the House Agriculture and Consumer Affairs Committee.³⁸ The Committee met on February 15, 2022, to discuss the bill and solicited testimony from several concerned citizens during the committee meeting.³⁹

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On February 24, 2022, the Committee met again to reconsider the bill, and Representative Dickey introduced a substitute based on the witness testimony heard on February 15.⁴⁰ The substitute incorporated the definition of a CAFO as is defined in the Code of Federal Regulations.⁴¹ Additionally, the substitute clarified that the commencement of a CAFO or swine feeding operation will "create a separate and independent established date of operation" that resets the time frame for establishing when a citizen or entity can file a nuisance suit.⁴²

The House Committee favorably reported the bill by substitute on February 28, 2022.⁴³ The House of Representatives passed the bill by substitute on March 3, 2022, by a vote of 102 to 62.⁴⁴

Consideration and Passage by the Senate

Senator Larry Walker III (R-20th) sponsored the bill in the Senate.⁴⁵ The Senate read the bill for the first time on March 4, 2022, and referred the bill to the Senate Agriculture and Consumer Affairs Committee.⁴⁶ The Committee met on March 14, 2022, and favorably reported the bill by substitute on March 29, 2022.⁴⁷ The amendments

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were presented to the Senate on April 1, 2022.⁴⁸ First, the Committee proposed limiting the right to file a nuisance suit against an agricultural facility or operation to only those who own real property affected by the alleged nuisance.⁴⁹ Second, the Committee proposed changing the time an aggrieved party has from development of a nuisance from one year to two years.⁵⁰ The Committee added language to ensure counties could bring suit in the rare instance of a public nuisance.⁵¹ Finally, the Committee added language that "[n]othing in this Code section shall preempt or override any present or future rule or regulation of the Georgia Environmental Protection Division or the United States Environmental Protection Agency."⁵²

On April 1, 2022, the Georgia Senate voted on the amended bill, and it passed with a vote of 31 to 23.⁵³

Final Consideration and the Governor's Signature

On April 4, 2022, the bill, as amended by the Senate, went back to the House for consideration.⁵⁴ Representative Dickey asked for the representatives' favorable consideration of HB 1150 as amended by the Senate.⁵⁵ Representative Dickey praised the...