This post shall not construe legal or political advice and should be only utilized for educational benefits.
We pick back up with our right-to-farm (RTF) series, today looking at whether RTF laws protect public health. Remember, if you care to read any earlier posts with Ashley Newhall covering life before RTF laws existed, Mae Johnson walking you through an ag mediation involving the RTF law, or my comparing Maryland’s law with other states’ laws, they are available at: http://www.aglaw.umd.edu/?tag=right-to-farm+series. Another good resource on Maryland’s RTF law is the fact sheet Understand Agricultural Liability: Maryland’s Right-to-Farm Law. If you have other thoughts on RTF law issues that should be covered, please send them to us at http://www.aglaw.umd.edu/contact/.
When it comes to RTF laws, there is often a misbelief that these laws do not take public health into consideration. Maryland’s RTF law does require public health be taken into account. For example, the act requires: “This section does not: . . . [r]elieve any agricultural or silvicultural operator from the responsibility to comply with any . . . local health . . . requirement[.]” (Md. Code Ann., Cts. & Jud. Proc. § 5-403(b)(1)(iii)). Stated more simply, in order to get the protections of the RTF law in Maryland, an agricultural producer needs to comply with local health requirements.
Maryland is not unique in taking public health into consideration with an RTF law. For example, California, Pennsylvania, and Virginia will not allow a locality to enact an ordinance which regulates a farm unless that ordinance is related to public health. An agricultural producer in Missouri could lose the protection of the RTF law if the expansion of their farm creates a hazard to public health. In Nevada, an agricultural activity could be considered a nuisance if it has a substantial adverse effect on public health. On the opposite end of the spectrum, states like Delaware, North Carolina, and West Virginia are just a few of the states that do not take public health into consideration in determining if the RTF law applies.
Maryland also has county RTF ordinances and many of the counties take public health into consideration in those ordinances. For example, in Frederick County, if the claimed nuisance involving an agricultural operation affects public health, then the county’s health department first investigates the complaint. During the investigation, the health department can rely on the opinion of the University of Maryland Extension’s staff in Frederick County or other qualified experts to determine whether the operation is conducted in accordance with generally accepted agricultural practices. This investigation can be initiated by either the county health department or by a complaint, and the health department can determine not to investigate repeat complaints about the same condition.
Other counties such as Somerset may not have a provision requiring nuisances involving public health to be investigated by the county health department but still require public health to be considered. In Somerset, agricultural operations receive protection of the RTF ordinance when they follow generally accepted agricultural and forestry practices, which do not violate public health. Similar to ordinances like Frederick County’s, Somerset looks to practices authorized by various governmental groups, including University of Maryland Extension.
If you have been keeping up with the series, you are beginning to see that RTF laws do not create a statutory defense to every law. RTF laws do create a defense to nuisance suits that agricultural operations have to meet certain requirements (such as complying with existing environmental and health laws) in order to use the defenses. If you need more help in understanding how an RTF law or any law impacting agriculture operates, please let us know at umaglaw@umd.edu and we can help provide you with resources to better understand that law.