Vermont briefing outlines S.45 changes to right-to-farm law, shifts litigation standard and adds exceptions

Michael Grady, legislative counsel, briefed legislators on S.45 and a Judiciary Committee proposed amendment during a legislative committee briefing, describing how the bill would change Vermont's right-to-farm statute.

Grady said the bill would remove the state's current rebuttable-presumption framework and replace it with a simple rule: "no agricultural activity shall be be or become a nuisance when the activity is conducted in accordance with generally accepted practices." He told lawmakers that the revised standard would tie protection to compliance with Required Agricultural Practices (RAPs), CAFO permit requirements in Title 10, Chapter 47 when applicable, pesticide rules, and practices consistent with customs followed by similar operations in the state.

The change is meant to provide broader legal protection to farming operations, Grady said, but he repeatedly cautioned that litigation would remain fact-specific and involve experts on both sides. He described how other states' statutes range from broader protections (for example, Kentucky and Oregon provisions he cited) to the narrower approach in current Vermont law, which permits a neighbor to overcome protection by showing a "substantial adverse effect on health, safety, or welfare" or a "noxious and significant interference" with use and enjoyment of neighboring property.

Why it matters: The draft S.45 would alter who bears what proof and how courts evaluate nuisance claims. Under the proposed language, a plaintiff would have to prove by a preponderance of the evidence that an agricultural activity is not entitled to nuisance protection because it was not conducted in accordance with generally accepted agricultural practices. The bill also includes several carve-outs and procedural steps that affect how and when a nuisance claim can proceed.

Key provisions and discussion points

- Generally accepted agricultural practices: The bill describes those practices as conforming with RAPs, applicable CAFO permits in Title 10, Chapter 47, Agency of Agriculture pesticide rules, and practices "consistent with proper and accepted customs and standards followed by similar operators of agricultural activities in the state." Grady acknowledged the phrase "proper and accepted customs" is not defined and said courts would develop precedent over time.

- Good standing: To assert nuisance protection, a person conducting an agricultural activity must demonstrate they are in "good standing," defined as having no active, unresolved enforcement violation that has reached a final order from the Agency of Agriculture or the Agency of Natural Resources. Grady said a farmer may show this with letters of good standing from the relevant agencies.

- Burden of proof: The draft explicitly places the burden on the plaintiff to prove by a preponderance of the evidence that the agricultural activity does not meet the generally accepted-practices standard. Grady said this language was added to clarify the standard and to address concerns that, under current wording, the practical burden often fell on the farmer.

- Public health and negligence carve-outs: The bill would not protect agricultural activity that results from negligent operation or that has a "substantial adverse effect on public health and safety." Grady said the public-health exception was added in later drafts after committee pushback; Representative Nelson asked, "And what would be an adverse effect on public health and safety?" Grady answered that plaintiffs would present facts, witnesses and testimony to show noise, smell or other conditions created a condition that adversely affected public health and safety, and that the standard is similar to Vermont's current law.

- Water pollution, runoff and flooding: A Judiciary Committee amendment would preserve a right to recover for injuries caused by pollution of state waters or groundwater or by runoff/flooding unless the runoff or flooding resulted from a large storm. The draft sets a threshold tied to a 25-year, 24-hour storm or, alternatively, an annual exceedance probability of 4% (a 1-in-25-year event). Grady described debate over whether the one-day 25-year/24-hour metric is the best measure and said the annual exceedance probability formulation is an alternative used by scientists.

- Mediation requirement and arbitration option: Before bringing a nuisance claim, a person must attempt to resolve the issue through mediation with the farmer at least once; they may then pursue binding arbitration if the parties agree, but arbitration is not mandatory. Grady said a plaintiff may provide the court a sworn statement that mediation was attempted before filing suit.

- Continuity, ownership and practice changes: The bill would preserve nuisance protection through changes in ownership, temporary cessation of operations (not more than five years), changes of crops, or conversions of farming methods on a farm.

- Jurisdictional limits and excluded activities: Grady said the draft covers agricultural activities only; forestry operations are not covered by this rewrite. He also said accessory on-farm businesses are not included in the definition of farming. Lawmakers asked whether hemp or cannabis-related operations are treated as farming; Grady said he would need to check prior carve-outs and the bill text for how cannabis or hemp are treated.

- Negligence versus gross negligence: Representatives raised the standard of culpability. Grady reviewed prior debates about gross negligence (a higher standard) and explained that the current draft uses a negligence standard and the carve-out for negligent operation is intended to remove protection for activities that are negligently conducted.

Questions and concerns from lawmakers

Multiple representatives pressed for clarity on vague terms and on how courts would identify the relevant experts or benchmarks for "accepted customs and standards." Representative Bridal asked about jurisdictional scope and whether forestry is covered; Grady responded forestry is not covered. Representative Bossard asked about who introduced the edits that remove certain language (for example, a clause referencing public health) and Grady said the crossed-out language appeared in the bill as introduced and in the Judiciary Committee amendment. Representative Nelson posed the public-health hypotheticals (for example, whether pollen affecting a single asthmatic person would meet the threshold) and Grady said plaintiffs would need to present evidence showing significant adverse effects.

Next steps

Grady said the committee will take testimony in coming weeks and may provide formal or informal feedback to House Judiciary. He noted the draft could take effect July 1, 2025, if enacted. Lawmakers scheduled further discussion and public testimony on the measure.

Ending

The briefing closed after roughly two hours of discussion; committee members will continue review and accept testimony in future hearings, and counsel said he would return with clarifications on specific carve-outs such as hemp/cannabis treatment and the precise placement of the public-health language in the bill text.