West Virginia's Right-to-Farm Summary

Legislators passed the right-to-farm law in West Virginia, describing it as a tool to protect and preserve “agricultural productive operations” from the “infringement upon agricultural lands and agricultural operations by other uses and occupancies.”1 Since the law first passed in 1982, farm operations in the state have grown by 19 percent while the acreage farmed has dropped by nearly 2 percent.2 So what does this legislation do in practice?

West Virginia’s RTF Law at a Glance

West Virginia’s RTF law initially provided sweeping protections for agriculture from any adverse actions generally, the only state in the nation to do so.3 Typically, RTF laws center on protecting agricultural operations from nuisance suits in particular, when they cause, for example, odor, smell, or other pollution. West Virginia, however, did not tailor its RTF protections to nuisance suits until a series of amendments in 2019.4 Now, agricultural operations—which include any facility used for agriculture—are explicitly protected in the state’s RTF law from public nuisance suits (filed on behalf of the people by the government) and private nuisance suits (filed by individuals).5

Still, agricultural operations also remain protected from adverse actions broadly. West Virginia sweepingly defines protected elements of agriculture, ranging from food, fiber, and woodland products, to cultivation, stillage, livestock, dairy, forestry, packing, milling, marketing, and any other “legal plant or animal production and all farm practices.”6 The law also broadly defines protected agricultural lands to include any amount of land and improvements, as long as the products produced from it total more than $1,000 annually. Prior to the 2019 amendments, agricultural operations had to be at least five acres to gain protection but now have no minimum acreage requirement.7

Conditions and Activities

West Virginia’s current RTF protections give near blanket immunity to any kind of agricultural conduct from court actions, including nuisance suits. West Virginia’s RTF law places the financial burden and risk on any entity (public or private) seeking compensation for pollution or other nuisances resulting from intensive agricultural operations. This happens through caps on damages, constraining who can sue and when, and the burden of attorney fees, all detailed below.8

Under the law, three requirements must be met before a nuisance suit may be filed against an agricultural operation.9 First, only the majority of legal landowners that have been adversely affected by an agricultural operation can file a nuisance suit. Second, the landowners must live within half a mile of the agricultural operations—a stipulation similar to that in North Carolina, which similarly amended its RTF law a year earlier.10 Finally, a nuisance suit may be filed against an agricultural operation only if the operation is materially violating a federal, state, or local law. The law does not define what “materially” means.

Crucially, West Virginia’s RTF law states that no “conduct of agriculture upon agricultural land” can be deemed adverse to other land uses (except for other agricultural uses).11 This may mean that only the owners of land used for agriculture can file a nuisance suit against a neighboring agricultural operation.12 The law, therefore, seems to protect agricultural operations from nuisance suits brought by those engaged in residential, commercial, business, or governmental land uses. There is one exception to this near-blanket immunity, but the meaning of the exception is not entirely clear, and we found no case law that has interpreted the law. Under this exception, a neighboring person complaining about an agricultural operation may be able to file suit if that person was there first and if the agricultural operation could cause that person or his or her property physical damage.13 Again, however, because the RTF law protects all agricultural conduct—without a specific start date—this exception may be a paper tiger.

In addition to the limits on who may bring a lawsuit against an agricultural operation, West Virginia’s RTF law provides various protections against claims of nuisance, specifically for agricultural operations that have been in operation for more than one year.14 For example, operations cannot be considered a nuisance if they were not one at the time they began and if the nuisance conditions being complained of have existed, without substantial change, since the operations began. In addition, an agricultural operation that has been in existence for more than one year cannot be found to be a nuisance because of any changed conditions in or around the location of the operation. In such cases, the operation will have an absolute defense against a nuisance claim—meaning it cannot be held liable for wrongdoing—so long as the operation provides proof that it has existed for more than one year and was complying with federal and state laws as well as all regulations and permits.

Even while tailoring some protections to operations that have been running for a year, the state’s RTF law also protects operations regardless of how long they have been in existence. For example, agricultural operations are protected from nuisance suits so long as they utilize commonly accepted agricultural practices.15 The law assumes that commonly accepted agricultural practices are those that comply with all applicable federal and state laws. Neither can an agricultural operation be considered a nuisance if it undergoes a “reasonable expansion.”16 A reasonable expansion can include purchasing additional land for the operation, introducing the use of new technology, transferring the operation, applying an Natural Resources Conservation Service program or USDA program to the operation, or any other change that does not affect the operation’s compliance with applicable laws and does not have a substantial, adverse effect on the environment or create a hazard to public health or safety.

None of West Virginia’s protections against nuisance lawsuits apply to situations in which the alleged nuisance is the result of negligence (failing to take proper care) or when the alleged injuries or damages are due to an agricultural operation’s violation of federal, state, or local laws.17

Local Governance

No state or local government can bring a criminal or civil action against agricultural operations that meet state and federal laws, permits, and regulations.18 In essence, this means the RTF law supersedes local governance. Moreover, since a 2019 amendment to the RTF law, municipal laws cannot be applied to any agricultural operation that is subsequently annexed or otherwise brought within the municipality’s corporate boundaries.

Attorney Fees and Limits on Damages

The 2019 amendments to West Virginia’s RTF law added a completely new set of provisions that limit the damages that are available in nuisance lawsuits, as well as the attorney fees and costs that can be imposed.19

Most importantly, the law now limits damages to those that pertain to property values.20 This means a person cannot recover damages related to the loss of use and enjoyment of property or any personal health impacts. The West Virginia amendment came two years after a similar RTF law amendment was passed in neighboring North Carolina, where legislators there responded to court settlements against large-scale hog operations by limiting the compensation that neighbors could receive.21

West Virginia’s current law limits compensation for permanent nuisances (those that cannot be remediated) to the reduction in the fair market value of the plaintiff’s property caused by the nuisance.22 Damages for temporary nuisances (those that can be abated through, for example, changing practices) are limited to the diminution in fair market value of the property. In no case may a plaintiff’s total damages exceed the diminished value of the property that is the subject of the nuisance lawsuit. In addition, if the same plaintiff brings multiple lawsuits against one or more agricultural operations, that plaintiff may not recover more, in total damages, than the fair market value of his or her property. Finally, punitive damages (that punish for bad behavior) are not allowed in any nuisance lawsuit brought against an agricultural operation. These 2019 amendments are particularly egregious for poor and minority rural communities, where property values are low and residents no longer can receive compensation for medical impacts.23 The amendments may further enable predatory practices, as operations strategically locate where people have the least amount of money to counter them and are entitled to the least amount of monetary compensation.

Finally, any person who brings a nuisance suit against an agricultural operation that has been up and running for more than a year is liable for all costs and expenses incurred by the operation’s defense.24 This includes, but is not limited to, attorney fees, court costs, travel, and other related expenses. This and similar language may have a chilling effect on the filing of nuisance suits in favor of industrial operators.25

1. W. Va. Code § 19-19-1 (1982).
2. U.S. Department of Commerce, “Table 1. Farms, Land in Farms, and Land Use: 1982 and Earlier Census Years,” in 1982 Census of Agriculture, Volume 1: Geographic Area Series, Part 48: West Virginia State and County Data, Chapter 1: State Data (Washington, D.C.: U.S. Bureau of the Census, 1984), https://agcensus.library.cornell.edu/wp-content/uploads/1982-West_Virginia-CHAPTER_1_State_Data-121-Table-01.pdf; “2021 State Agriculture Overview: West Virginia,” U.S. Department of Agriculture, National Agricultural Statistics Service, accessed October 21, 2022, https://www.nass.usda.gov/Quick_Stats/Ag_Overview/stateOverview.php?state=WEST%20VIRGINIA.
3. W. Va. Code § 19-19-4 (1982).
4. Since our research uncovered no news coverage of RTF cases in the state, we do not know in practice if protection from adverse actions generally plays out differently than nuisance suit protections more specifically.
5. 2019 W. Va. Acts 7 (S.B. 393) (amending W. Va. Code § 19-19-2; adding W. Va. Code § 19-19-7).
6. W. Va. Code § 19-19-2 (2021).
7. 2019 W. Va. Acts 7 (S.B. 393) (amending W. Va. Code § 19-19-2).
8. Our research uncovered no cases that utilized the right-to-farm defense, and likewise no news coverage of any RTF cases in the state, suggesting the law has stifled legal action.
9. W. Va. Code § 19-19-7 (2021).
10. See 2018 N.C. Sess. Laws 113 (S.B. 711) (amending N.C. Gen. Stat. § 106-701).
11. W. Va. Code § 19-19-4 (2021).
12. W. Va. Code §§ 19-19-4, 19-19-7 (2021).
13. W. Va. Code § 19-19-4 (2021).
14. W. Va. Code § 19-19-7 (2021).
15. W. Va. Code § 19-19-7 (2021).
16. W. Va. Code § 19-19-7 (2021).
17. W. Va. Code § 19-19-7 (2021).
18. W. Va. Code § 19-19-7 (2021).
19. See 2019 W. Va. Acts 7 (S.B. 393) (adding, in relevant part, W. Va. Code § 19-19-8).
20. W. Va. Code § 19-19-8 (2021).
21. See 2017 N.C. Sess. Laws 11 (H.B. 467) (amending N.C. Gen. Stat. § 106-702).
22. W. Va. Code § 19-19-8 (2021).
23. Taft Wireback, “Blust Breaks with GOP over Nuisance Lawsuits,” Greensboro (N.C.) News and Record, April 11, 2017.
24. W. Va. Code § 19-19-8 (2021).
25. Cordon M. Smart, “The ‘Right to Commit Nuisance’ in North Carolina: A Historical Analysis of the Right-to-Farm Act,” North Carolina Law Review 94, no. 6 (2016): 2097–154.