Committee reviews S.45 draft 1.2: shifts in nuisance law, CAFO permits and proof standards for farms

A House committee on April 2 examined draft 1.2 of S.45, a proposed change to Vermont law that would alter when agricultural activities can be treated as a private nuisance and what a farm must show to claim protection.

The draft would attach nuisance protection to farms that can demonstrate “good standing” with state agencies and that their operations follow generally accepted agricultural practices, and it explicitly incorporates requirements tied to concentrated animal feeding operation (CAFO) permits. The bill would remove trespass from the statute’s protection while preserving plaintiffs’ rights to bring claims for flooding, water pollution and similar harms in specified circumstances.

Why it matters: The committee heard from state and outside counsel, environmental advocates and agriculture officials who said the revisions could shorten litigation for farms, narrow the factual issues courts must decide and interact with federal Clean Water Act enforcement and EPA oversight on CAFO permitting. The changes would affect how neighbors and farms handle odor, runoff, particulate matter and other cross-boundary impacts.

Steve Collier, general counsel for the Vermont Agency of Agriculture, said his office “prefer[s] the bill to pass the Senate” but offered technical edits intended to avoid unintended litigation. Collier recommended clarifying that CAFO permit requirements apply only where a farm “has a CAFO permit” or is subject to an active federal CAFO requirement, because most Vermont farms do not currently hold federal CAFO permits. “If you have a CAFO permit … one of the things you would have to show is that you’re complying with it,” Collier said. He urged language such as “active concentrated animal feeding operation permit” so courts do not read the statute to require compliance with a permit that the farm never held.

Scott Sanderson, director of the Conservation Law Foundation’s Farm and Food Program, complimented changes he said reduce the prior bill’s presumption and “make a number of really significant improvements.” Sanderson recommended the committee add an exception allowing a plaintiff to overcome the bill’s procedural protections by showing the alleged harm meets a heightened standard tied to health or safety. “I continue to think that it would make sense to allow a plaintiff to overcome the extra protection … if they can demonstrate that the harm … has a substantial adverse effect on health or safety,” Sanderson said, citing other states that use similar language.

Legislative counsel Gregor Daily and Committee counsel discussed tradeoffs in language. Daily cautioned that importing the common-law definition of nuisance could unintentionally reintroduce harms the draft aims to distinguish from nuisance (for example, classic trespass claims related to flooding). He also agreed with adding particulate matter to the statutory list of examples and suggested drafting options to exclude normal surface runoff while preserving remedies for changes in land use that substantially increase flow or pollution.

Committee members and witnesses debated several specific points:

- Good standing and proof: Witnesses urged that courts and parties be given clear, administrable proof standards. Collier and others suggested that a letter from the Agency of Agriculture or the Agency of Natural Resources confirming no unresolved final enforcement order would be a simple way to demonstrate good standing; Collier also proposed that a sworn statement be an acceptable initial burden. Legislative counsel noted courts could require agency letters but said the statute already defines good standing by the absence of a final order.

- CAFO permits and enforcement: Witnesses discussed EPA oversight and the possibility that ANR (the Agency of Natural Resources) could be required to pursue CAFO permits for some operations. Collier described how federal permitting applies when a farm is discharging and that federal and state permitting requirements overlap for those farms.

- Trespass vs. nuisance and liquids/particulates: The draft removes trespass as a protected category but defines nuisance with a nonexclusive list of harms. Collier and others cautioned that including liquids or particulate matter without clear limits could revive trespass-like claims; Scott Sanderson recommended care so that protections for flooding and water-pollution claims remain available to plaintiffs where appropriate.

- Mediation and timing: The bill would require an attempt at mediation before some suits; witnesses noted free federal mediation services exist now, and counseled the committee on how to limit the potential for mediation delays to avoid ongoing harms.

Committee members asked whether the draft would allow legacy or permitted practices to be sued. Witnesses said the bill shifts the initial burden of proof to plaintiffs and defines obligations for farmers to follow water-quality and pesticide rules, but they acknowledged specific facts would still govern litigation outcomes. As Gregor Daily put it, the draft’s “including” language keeps the door open for courts to consider additional common-law nuisance concepts unless the committee narrows the statutory definition.

Next steps: Committee staff said they would circulate an updated draft (1.3 or similar) reflecting technical edits discussed, and the panel planned to reconvene the following Tuesday.

The meeting contained no formal votes on S.45 during the recorded session.