Vermont senators hear divided testimony on S.45’s expansion of right-to-farm protections to trespass

Vermont senators heard sharply divided testimony Feb. 27 on S.45, a bill that would expand the state’s right-to-farm protections to cover trespass and otherwise limit when neighbors may sue farms for harm.

Supporters of the bill told the Senate Judiciary committee it would shield farmers from costly, uncertain litigation and protect agricultural operations that comply with law and accepted practices. Opponents — including attorneys and environmental advocates — said the proposal would undercut property rights, create barriers for plaintiffs seeking relief for water- and property-damaging practices, and rely on regulatory determinations that state agencies do not consistently reach.

The debate centered on two main changes in S.45. The bill would extend right-to-farm protections beyond nuisance claims to some trespass claims, and it would bar nuisance or trespass suits unless the plaintiff can prove the farm violated certain water-quality or pesticide requirements or engaged in activities not common to similar farms. Proponents described the change as a needed shield for farms; critics said it sets a high evidentiary hurdle that effectively denies property owners remedies when farms cause physical invasion or environmental damage.

"CLF opposes S.45 because it doesn't solve the problem," Scott Sanderson, director of the Conservation Law Foundation’s Farming & Food Program, told the committee. Sanderson argued that nuisance and trespass lawsuits against farms are rare and that Vermont’s existing right-to-farm framework already balances farming protections with neighbors’ rights. He said S.45 would "curtail property rights by extending right to farm to include trespass" and could prevent monitors from protecting property, health and welfare through the courts.

John Groban, policy and water program director for the Vermont Natural Resources Council, told senators his organization had submitted records and a petition to the U.S. Environmental Protection Agency after reviewing complaints and enforcement documents that, in Groban’s view, showed inconsistent enforcement of water-quality standards by state agencies. Groban said S.45’s requirement that plaintiffs prove noncompliance with specified state practices could place an impractical evidentiary burden on private litigants and would not address alleged gaps in agency enforcement.

"You're asking the plaintiff to prove noncompliance with practices and law — something the government has a hard time finding out," Groban said, arguing that private citizens lack inspection and enforcement powers of state regulators.

Attorneys and farmers who oppose removing the trespass piece told the committee the civil courts are an important backstop when regulatory systems fail. Merrill Bent, who said his firm represented a plaintiff in what he described as"an extreme outlier" case, described a property where installation of large subsurface tile drains upstream produced concentrated flows that "physically invaded" the downhill property and carried increased levels of phosphorus and E. coli into Lake Champlain. Bent said in that case the court found the right-to-farm presumption did not apply; the plaintiff sought injunctive relief to stop damage rather than money damages.

"This is an extreme example," Bent said, describing 19 miles of subsurface tile drains installed upslope; he added that the case showed existing regulation did not prevent serious property and environmental harm in that instance.

Farm counsel and the farm representative emphasized different facts and policy priorities. Clayton Safar, representing Horstel Farms, said the right-to-farm law as drafted provides an important shield for farms and noted practical difficulties in meeting the four-part test courts use now for the rebuttable presumption in right-to-farm defenses. Safar argued that the bill’s approach of protecting commonly accepted agricultural practices and including trespass is necessary to avoid undermining farm viability as agricultural practices evolve.

Farmer Gerard Borsfell (as transcribed) told the committee he and his brothers have spent years defending against a neighbor’s complaint after making farm improvements and installing tile drains; he described ongoing litigation, repeated inspections and substantial legal and remediation costs. He said his family has spent "hundreds of thousands of dollars" defending the case and that the neighbor has more resources to continue suit. Borsfell said the current statutory regime provides limited protection even when farms work with agencies and follow recommended practices.

Committee members pressed witnesses about specifics: whether the bill’s mediation requirement could delay emergency relief for an ongoing harm; whether the requirement that plaintiffs prove violations of "Title 6" water-quality practices (as discussed in testimony) would exclude federal Clean Water Act concerns; and how a plaintiff could marshal the technical expert proof the draft would require.

No formal action or vote on S.45 occurred during the hearing. Senators heard multiple requests for technical clarifications from state agencies and were told the EPA has preliminarily agreed with petitioners that some farm discharges merited federal attention — a pending process Groban said was unresolved and relevant to the policy discussion.

The committee hearing demonstrated the core tension animating S.45: farm advocates seek broader statutory protections for agricultural operations to reduce litigation risk as practices change and farms modernize; environmental and consumer-rights advocates say civil suits and trespass claims are an essential remedy when physical invasions, erosion, or pollutant discharges cause real harm and when regulators fail to act. Several witnesses urged narrower drafting or removal of the trespass expansion while recognizing mediation or other procedural changes might be appropriate if limited to non-emergency disputes.

Committee members indicated they would seek additional briefings and agency input, particularly from the Agency of Natural Resources and the Agency of Agriculture, Farms and Markets, before deciding whether to advance the bill.

(End of report.)