Introduction
On August 18, 2016, a woman was admitted to an acute care hospital in Nevada with a primary diagnosis of systemic inflammatory response syndrome, likely from an infection in her hip.1 One week later, health care workers reached out to the county health district with a terrifying report: The bacteria responsible for the woman’s infection was resistant to all available antimicrobial drugs.2 She died in September of 2016 from the infection.3
We live in the era of antibiotics. Infections and diseases that would have been life-threatening just 100 years ago are now easily treatable with widely available drugs.4 However, there are signs that this era is drawing to a close. Drugs previously seen as the last line of defense no
longer work to treat all infections.5 Patients are refused chemotherapy, joint replacements, and heart transplants because they have infections resistant to antibiotics.6 Antibiotic resistance is developing in bacteria faster than we are developing new drugs.7 And antibiotic resistance is now causing over 2.8 million antibiotic-resistant infections and over 35,000 resulting deaths a year in the United States.8 We face a question unknown in our lifetimes: What would it be like to live in a world without effective antibiotics?
Despite the risk of developing AR-bacteria from overuse of antibiotics,9 the majority of medically important antibiotics are used on animals, not on humans.10 As a result, antibiotic use by concentrated animal-feeding operations (CAFOs) is a leading factor in the development of antibiotic resistance,11 with little discussion of whether lower costs of meat are worth the public health risks.12 Though antibiotic use is regulated, regulation in the United States is insufficient to meaningfully prevent risks or even to reduce the volume of antibiotics sold to the animal agriculture industry.13 The industry’s overuse of antibiotics puts us all at risk, but it poses particular risks to people working in the industry and people who live near CAFOs or slaughterhouses.14 These people are disproportionately likely to be members of marginalized communities.15
Despite the risks and justice implications thereof, there is currently no clear path for people harmed by animal agriculture–associated AR-bacteria to hold the animal agriculture industry accountable for its role in an evolving public health crisis. This Essay proposes using tort law — specifically, public nuisance — as a tool. To do so, this Essay examines public nuisance law in one state, Washington,16 and argues that CAFOs’ overuse of antibiotics leading to the development of AR-bacteria is a cognizable public nuisance. Part I provides background on the issue; Part II outlines the contours of a public nuisance claim in Washington State; Part III argues that this claim is not barred by Washington’s Right to Farm Act17 (RTF Act); and Part IV makes policy suggestions.
I. Background
A. Animal Agriculture and AR-Bacteria
Antibiotics not only prevent disease in animals by killing pathogenic bacteria, but also promote growth and increase feed efficiency independently of disease prevention effects.18 CAFOs therefore have a financial incentive to utilize antibiotics for reasons beyond disease prevention.19 Use of antibiotics is a key contributing factor to antibiotic resistance because application of antibiotics provides selective pressure.20 In the presence of antibiotics, only bacteria with a genetic trait conferring resistance to the antibiotic will survive and proliferate as a general matter.21 Many mutations that give rise to antibiotic resistance result in additional energy expenditure by the bacteria.22 These mutations will thus lead to decreased relative fitness in the mutated population unless the mutation is needed because of the presence of the antibiotic.23 Application of antibiotics thus provides selective pressure toward antibiotic resistance. Over time, strains of bacteria may develop resistance to many antibiotics, making those bacterial infections difficult to treat.24
Two major genetic strategies lead to antibiotic resistance in bacteria.25 The first is mutational resistance, in which the bacteria acquire resistance through random mutations.26 The second is horizontal gene transfer (HGT).27 In HGT, bacteria acquire genes from their environment and from each other.28 Through HGT, development of genes providing antibiotic resistance in one species increases the risk that other species develop resistance to that same antibiotic.29 This spread of antibiotic resistance genes can be mapped through modern genetic sequencing techniques.
B. Genetic Sequencing Technology and AR-Bacteria
Just as humans can have portions of their DNA sequenced through commercial platforms like 23andMe,30 bacterial DNA can also be sequenced to identify near relatives. Genetic sequencing can determine the origin of particular strains of AR-bacteria.31
Using existing technologies, scientists are able to take samples from humans, animals, and the environment.32 Bacteria can be isolated from those samples.33 Scientists may then identify the species of bacteria and whether the isolates are resistant to antimicrobial drugs.34 Once the sequence of each isolate is determined, the sequences can be compared to each other and to existing databases of genetic information to determine the most closely related strains.35 Using statistical analysis, scientists are able to construct a model for the evolution of a particular strain, based upon the relation between the strains.36 This model can be used to identify where a particular strain emerged; for example, if a strain isolated from an infected individual is most closely related to a strain isolated from an animal at a CAFO, that individual was likely infected with a strain that evolved at that CAFO.37 Sequencing technologies thus make attribution possible.
C. History of Antibiotic Regulation in the United States
There is a long history of ineffectual antibiotic regulation in the United States. In the 1950s, the U.S. Food and Drug Administration (FDA) “approved applications for the use of various antibiotics in food-producing animals for a variety of non-disease-treatment purposes, including growth promotion, feed efficiency, and disease prevention,”38 acting under its authority granted by the Federal Food, Drug, and Cosmetic Act.39 These antibiotics were approved for use at subtherapeutic levels and for administration on a herd- or flock-wide basis, rather than merely to specific diseased animals.40 By the late 1960s, science began to link the use of antibiotics on food-producing animals to increased antibiotic resistance in bacteria that could affect humans.41 In 1970, the FDA assembled a task force with scientists from the FDA, the National Institutes of Health (NIH), the U.S. Department of Agriculture (USDA), the Centers for Disease Control and Prevention (CDC), academia, and industry.42 The task force published its report in 1972, which found that “use of antibiotics, especially in subtherapeutic amounts, favors the selection and development of single and multiple antibiotic resistant . . . bacteria” and recommended restricting use of medically important classes of antibiotics in feed.43
In 1973, the FDA proposed withdrawing approval for the subtherapeutic use of antibiotics in food-producing animals unless the industry submitted data conclusively demonstrating the safety of antibiotic use, including by showing that subtherapeutic use of a drug would not increase the risk of antibiotic resistance to humans.44 After receiving evidence submitted by the industry, the FDA did not withdraw approval of all subtherapeutic uses, and instead “proposed to withdraw approval of all subtherapeutic uses of penicillin in livestock and to restrict subtherapeutic use of two tetracyclines in livestock.”45 However, the FDA did not take any action on the proposed withdrawal,46 and instead approved new drug applications for the subtherapeutic use of penicillin and tetracycline in food-producing animals in the 1980s.47
No progress was made on curbing subtherapeutic antibiotic use over the following decades. Advocacy groups submitted citizen petitions to the FDA in 1999 and 2005, and in 2011, advocacy organizations filed suit against the FDA, seeking to compel “the FDA to withdraw approval for the subtherapeutic use of penicillin and tetracyclines in animal feed.”48 During the course of the lawsuit, the FDA denied both citizen petitions.49 The advocacy organizations eventually lost the case.50
In the 2010s, the FDA introduced a new policy framework around the use of medically important antimicrobial drugs in food-producing animals through three core documents.51 The first of these documents was published in April 2012 as Guidance for Industry (GFI) #209.52 GFI #209 set forth a voluntary framework for the management of medically important microbial drugs in animal agriculture.53 This guidance recommended two key principles to help minimize antimicrobial resistance (AMR) development: first, to limit the use of medically important antimicrobial drugs in animals to “uses that are considered necessary for assuring animal health,” and second, to ensure “veterinary oversight or consultation.”54
The FDA released the second document, GFI #213, in December 2013.55 GFI #213 outlined a process to bring drug sponsors into voluntary compliance with GFI #209.56 The FDA expected the industry to voluntarily transition feed-use antimicrobial drugs from over-the-counter (OTC) to veterinary feed directive (VFD) marketing status.57 Drugs with VFD marketing status occupy a middle ground between OTC and prescription drugs.58 OTC drugs do not require a prescription or any veterinary oversight.59 Prescription drugs require a prescription from a veterinarian and a pharmacist to dispense.60 VFD drugs require veterinary supervision to use, but do not require a prescription.61 GFI #213 provided drug sponsors with a timeline and specific recommendations on aligning with the two principles in GFI #209 and recommended that the drug sponsors update the use conditions of the drugs to forbid use for production purposes and allow use “only for therapeutic purposes with the supervision of a licensed veterinarian,”62 thus moving these drugs into the VFD program.63
On June 3, 2015, the FDA promulgated a final rule as the third and final core document in its new policy framework.64 The rule aimed to make the VFD process as efficient as possible, in order “to facilitate transition of [the drugs] from OTC to VFD marketing status.”65 To that end, the rule changed certain definitions and clarified general requirements for VFD drugs, responsibilities of the VFD drug sponsor, and specific responsibilities of the veterinarian issuing the VFD.66 The FDA expected affected feed-use antimicrobial drugs to transition from OTC to VFD marketing status,67 and by 2017, “[t]wenty-five out of twenty-six of the current drug sponsors, representing over 99.95% of the total sales of products affected by [GFI] #213, . . . committed to change the use conditions of their feed-use drugs so that they [were] VFD.”68
Though there was industry buy-in to the new framework, the framework did little to meaningfully limit overapplication of antibiotics. The animal agriculture industry was still permitted to use subtherapeutic doses on healthy animals, as long as the application was for disease prevention purposes and not for growth promotion.69 However, as Professor Emilie Aguirre puts it, “[b]acteria . . . do not distinguish between low doses of antibiotics administered for production purposes and low doses administered for disease prevention.”70 One drug sponsor stated it did not anticipate any drop in revenues under the new framework, while another planned to have its drug reclassified as prevention-related instead of production-related.71
And indeed, there has not been a meaningful drop in antimicrobial sales for use in animal agriculture. Antimicrobial sales dropped substantially between 2016 and 2017 (around 34% by mass), but then climbed by 9% between 2017 and 2018.72 Sales stayed approximately constant between 2018 and 2023, but increased by 17% between 2023 and 2024.73 While sales are still below 2016 levels, sales continue to climb from 2017 levels, and nearly seven million kilograms of medically important antimicrobials were sold in 2024.74 CAFOs’ continuous use of high levels of antibiotics places communities at risk, with no signs of abatement in sight.
II. An AR-Bacteria Public Nuisance Claim
In light of the massive threat that CAFOs’ overuse of antibiotics presents to human health and the failure of the government to meaningfully regulate in this space, new strategies are needed to hold CAFOs accountable and protect the public. Public nuisance offers a promising path. As public nuisance sounds in state law, this Essay focuses on outlining the theory in a specific state: Washington.75
Nuisance claims are statutory claims in Washington State under Chapter 7.48 of the Revised Code of Washington.76 Washington defines “nuisance” as that which “annoys, injures or endangers the comfort, repose, health or safety of others, offends decency, or unlawfully interferes with . . . any lake or navigable river, bay, stream, canal or basin, . . . or in any way renders other persons insecure in life, or in the use of property.”77 A “public nuisance” is defined as “one which affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal.”78 The state may bring an action for any public nuisance, but private individuals may bring an action for a public nuisance only “if it is specially injurious to himself or herself.”79 Damages or injunctive relief may be awarded.80
The use of public nuisance to address impacts from animal agriculture has a long history in Washington. Washington’s statutory nuisance law dates back to 1875,81 and the definition of a public nuisance has remained unchanged since.82 In 1904, the Washington Supreme Court held that a slaughterhouse was a public nuisance.83 The court declared that “[t]here can be no doubt” of its status, emphasizing the “unclean and filthy condition,” the “offal, filth, and animal refuse matter” that entered the waters of the bay, the pollution of air and water, and the harm to people living in the area.84 Though our understanding of the threats from animal agriculture has evolved, there is no reason to presume that these newly understood harms are less actionable than traditionally understood harms under public nuisance law.
In Washington, a plaintiff could bring an actionable public nuisance per se claim against a CAFO for the harm caused to the community by its overapplication of antibiotics. In general, to bring a public nuisance claim, the plaintiff must show the existence of a nuisance that affects equally the rights of an entire community or neighborhood85 and that constitutes an unreasonable use of land.86 However, Washington’s public nuisance law also enumerates, in section 7.48.140, certain activities that constitute public nuisances per se.87 When bringing a per se claim under section 7.48.140, a plaintiff need not show that the challenged activity affects a broad community or is unreasonable, as the legislature has already made those determinations.88 To bring a public nuisance per se claim under section 7.48.140, a plaintiff must instead show that (1) defendant’s conduct constitutes a nuisance per se;89 (2) defendant’s conduct interfered with a right;90 and (3) plaintiff suffered special injury.91 Each of these requirements are discussed in turn.
A. Public Nuisance Per Se
A nuisance per se is “an act, thing, omission, or use of property which of itself is a nuisance, and hence is not permissible or excusable under any circumstance.”92 Section 7.48.140 includes nine enumerated activities that are per se nuisances.93 The CAFO’s activities are per se nuisances under sections 7.48.140(1), 7.48.140(2), and 7.48.140(7).
1. Section 7.48.140(1). — The first enumerated public nuisance in section 7.48.140 is “[t]o cause or suffer the carcass of any animal or any offal, filth, or noisome substance to be collected, deposited, or to remain in any place to the prejudice of others.”94 Plaintiffs have successfully brought claims on these grounds. For example, in Elves v. King County,95 the Washington Supreme Court considered whether a town’s collection and diversion of water containing human and animal excreta through a culvert on the plaintiffs’ property was a public nuisance.96 The court affirmed the lower court’s finding that “human and animal excreta . . . present in the waters . . . constituted a menace to public health and safety,” and found for the plaintiffs.97
Two separate theories could arise under section 7.48.140(1). First, animal carcasses98 or animal waste (filth) carrying AR-bacteria99 are a nuisance if they are left in a place that exposes people (“prejudices others”) to the AR-bacteria they carry. This interpretation could include animal waste applied to fields which seeps into local waters,100 or animal carcasses left to rot which are encountered by workers at a facility.101 Second, AR-bacteria themselves are a “noisome substance.” Though noisome frequently implies an odor or fumes of some sort, it alternatively is used to describe diseases.102 AR-bacteria, as pathogens, fit into this definition of noisome substance.
2. Section 7.48.140(2). — The second enumerated public nuisance in section 7.48.140 is “[t]o throw or deposit any offal or other offensive matter, or the carcass of any dead animal, in any watercourse . . . or common sewer, street, or public highway, or in any manner to corrupt or render unwholesome or impure the water . . . to the injury or prejudice of others.”103 In Bales v. City of Tacoma,104 the Washington Supreme Court held that discharge of sewage into a swamp constituted a public nuisance.105 The harm arose due to the contamination of water, including by the presence of colon bacilli (bacteria).106 The water ran downstream and poisoned fish in the plaintiff’s hatchery.107 The court relied on section 7.48.140(2) for this holding, either including sewage under the banner of “offensive matter” or considering sewage “to corrupt . . . the water.”108
More recently, in City of Seattle v. Monsanto Co.,109 the U.S. District Court for the Western District of Washington considered the city’s claim that polychlorinated biphenyls (PCBs) had escaped from defendants’ use and entered local water systems, constituting a public nuisance.110 The city pled a claim both as a public nuisance per se under section 7.48.140(2) and as a public nuisance in fact.111 The court considered both claims together and denied Monsanto’s motion for summary judgment, finding the evidence of injury “more than sufficient” to survive the motion.112
In both Bales and Monsanto, the courts demonstrated a willingness to liberally construe the text of section 7.48.140(2). They interpreted “or in any manner to corrupt or render unwholesome or impure the water”113 broadly to cover defendants’ contaminating waters with sewage, bacteria, and PCBs, making no attempt to limit the language to disposal of only carcasses, offal, or related substances.114 The courts also did not limit nuisance to substances directly observable by the plaintiffs, and instead allowed water quality testing to demonstrate the existence of a nuisance.115 Like colon bacilli in Bales and PCBs in Monsanto, AR-bacteria “corrupt or render unwholesome or impure the water”116 and can be identified with scientific testing, though they are not observable to the naked eye.
3. Section 7.48.140(7). — The seventh enumerated public nuisance in section 7.48.140 is to “use any building, or other place, for the exercise of any trade, employment, or manufacture, which, by occasioning obnoxious exhalations, offensive smells, or otherwise is offensive or dangerous to the health of individuals or of the public.”117 This section has been applied to slaughterhouses,118 a sewage disposal plant,119 and a powder magazine (explosives),120 suggesting that this section could be applied to animal agriculture, excreta, and activities that are dangerous but do not produce an offensive smell, respectively. CAFOs’ use of their facilities to overapply antibiotics — an animal agriculture business, generating hazardous animal excreta and dangerous (but odorless) AR-bacteria — is likewise arguably a nuisance under section 7.48.140(7).
* * *
Each of these public nuisance per se claims is premised on demonstrating that (1) the defendant developed and released AR-bacteria into the community121 and (2) the community was harmed by its development and release.122 (Despite not needing to show harm as a separate element in a nuisance per se claim, the text of each of the three subsections of section 7.48.140 discussed above requires a showing of some harm or risk of harm.123) Genetic sequencing technologies can be utilized to demonstrate these elements. As discussed in Part I, the technology exists to identify the origin of AR-bacteria isolated from a sample. Thus, by taking samples from public waterways and the local environment as well as the CAFO itself, a plaintiff could demonstrate that the defendant was responsible for the AR-bacteria strain (the noisome substance or offensive matter) that is now present in the local environment. By sequencing samples from infected individuals and the CAFO, a plaintiff could show the harm to the community. Genetic sequencing allows the identification of the source of an AR-bacteria strain, and thus allows a plaintiff to demonstrate violations of section 7.48.140 constituting a nuisance per se.
B. Interference with a Right
Even if the CAFO’s conduct constitutes a nuisance per se, a plaintiff must still show that the nuisance caused some interference with a property interest124 or is a threat to public health or safety.125 In Washington, courts have recognized a wide variety of harms as property interference or a threat to public health or safety. Recognized harms include “private interference on the public use of [a state] resource;”126 disturbance of the right to quiet enjoyment and property rights due to a public misrepresentation by the defendant leading to “public ire, harassment, and vandalism” directed at the plaintiff;127 impaired ability to enjoy plaintiff’s own property due to defendant’s illegal junkyard (which posed a threat of “irreparable harm” because it was an attractive nuisance to children and a habitat for rats, and also caused depreciation of property values);128 risks to public health and safety from a potential mosquito infestation in old tires;129 and reasonable fear of injury to health and property from a gas plant leak.130
AR-bacteria present actionable harms to the plaintiff and the public. First, a plaintiff could demonstrate threats to health and safety just by demonstrating the presence of AR-bacteria.131 Second, a plaintiff could allege mental harm. Washington courts recognize mental harms from perceived risks of harm to health.132 In Goodrich v. Starrett,133 a public nuisance case concerning an undertaking establishment and morgue, the Washington Supreme Court noted that the plaintiffs were harmed because “they lived in dread of acquiring some contagious disease.”134 In Champa v. Washington Compressed Gas Co.,135 the Washington Supreme Court held that “the dread which is the disquieting element upon which plaintiffs’ complaint is made to rest” was actionable as a public nuisance claim.136 Thus, a plaintiff could bring a claim based on a community-wide fear of infection.
C. Special Injury to the Plaintiff
To bring an actionable public nuisance claim, the public nuisance must be “specially injurious” to a plaintiff.137 This “requirement is not a particularly high bar,”138 and is not “more demanding or exacting than the injury needed for noneconomic standing generally.”139 A plaintiff must show only that she has suffered an injury in fact that is “sufficiently distinct” from the harms suffered by the general public.140 Nearby landowners,141 state or local governments,142 hospitalized individuals with unique pecuniary and health injuries, workers and veterinarians who face unique exposure risks, and recreational aficionados who are no longer able to swim, boat, or kayak in the waters could all have unique injuries and thus bring a claim.143 The state could also bring an action without needing to show special injury.144
D. Counterarguments
A defendant CAFO would likely respond with several arguments, though these arguments are unlikely to be successful. The most substantial (though not unassailable) barrier is Washington’s RTF Act, which is discussed in Part IV. Two other arguments — while flawed — might also be advanced by the CAFO.
1. Longstanding Practice. — The CAFO may argue that the public nuisance claim is barred because it has been using antibiotics for a significant period, and the plaintiff cannot now interfere with established practice. This argument will fail. “[P]rescription or lapse of time cannot be relied on to establish a right to maintain a public nuisance.”145 Furthermore, use of a given antibiotic presents new risks as antibiotic resistance to other drugs grows, given that the largest risks to human health from bacteria come from bacterial infections resistant to most or all medical antibiotics.146 Thus, the CAFO’s practice of using antibiotics becomes a larger nuisance over time, and it cannot argue that the nuisance constitutes an established practice.147
2. Regulatory Approval. — Similarly, the CAFO may argue that because antibiotics and the animal agriculture industry are regulated, as long as it is in compliance with applicable laws, the activity is inherently not a public nuisance. This argument is also unlikely to succeed. The Washington Supreme Court found, in a plurality opinion, that a nuisance claim could proceed against a defendant with proper pollution discharge permits if the discharge injured another’s property.148 In Tiegs v. Watts,149 the plurality opinion explained:
A person who conducts a business or a plant lawfully and in the best manner practicable with a sound operation may still commit a nuisance if the operation interferes unreasonably with other persons’ use and enjoyment of their property. . . . The fact a governmental authority tolerates a nuisance is not a defense if the nuisance injures adjoining property.150
Thus, regulatory compliance will not bar a nuisance claim. However, Washington’s RTF Act presents a more serious barrier.
IV. Washington’s Right to Farm Act
While far from insurmountable, the most substantial barrier to this claim is Washington’s RTF Act.151 Every state in the United States has
a right-to-farm act,152 and Washington is no exception. Broadly speaking, right-to-farm acts protect agricultural operations from legal liability, though the protections vary by state.153 Washington’s RTF Act protects agricultural activities conducted on farmland and forest practices from nuisance claims.154
Washington courts apply a three-step framework in assessing whether the defendant has statutory immunity under the Act.155 First, the court will look at whether the agricultural activity or forest practice is “consistent with good agricultural and forest practices.”156 Then, the court will look at whether the activity was “established prior to surrounding nonagricultural and nonforestry activities.”157 Finally, the court will consider whether “the activity . . . has a substantial adverse effect on public health and safety.”158
Courts in Washington construe the Act narrowly. In Buchanan v. Simplot Feeders Ltd. Partnership,159 the Washington Supreme Court found that “public policy considerations urge a narrow application of the Act.”160 The court likened the Act’s protections “to a prescriptive easement,” writing that the “Act gives the farm a quasi easement against the urban developments to continue . . . nuisance activities.”161 The court proceeded to note that a farm can secure this statutory quasi-easement more readily than a prescriptive easement, which would require a “claimant [to] show (1) open, notorious, uninterrupted use for 10 years which is (2) adverse to the title owner, and (3) the owner was aware of the adverse use and had the opportunity to enforce the owner’s rights.”162 From this analogy, the court concluded, “[j]ust as prescriptive rights are difficult to obtain, and are not favored in law, we hold the nuisance protection afforded by the Right-to-Farm Act must be applied cautiously and narrowly.”163
The Act should not present a barrier to an AR-bacteria public nuisance claim for two reasons: The Act may not bar the claim because of the establishment date of the activity, and the Act will not bar the claim because the activity in question has a substantial effect on health and safety.
A. Establishment Date of the Activity
First, the Act does not block claims brought by a plaintiff who was established in the area before the relevant agricultural operation.164 Thus, in any cases where the defendant moved into the area or began its practice after the plaintiff, the plaintiff could bring a claim that would not be barred by the Act.
Second, Washington courts have held that the Act does not bar claims based on farming practices that began after the plaintiff was established in the area, even if the farm itself predates the plaintiff’s establishment. In Davis v. Taylor,165 an appellate court considered whether the temporal requirement in the Act’s language protecting “agricultural activities . . . established prior to surrounding nonagricultural and nonforestry activities”166 referred to the farm or the farming practice.167 The defendants had operated an apple orchard prior to the construction of a neighboring residential development.168 After the residential development was established, the farmers converted their property to a cherry orchard and began to use loud guns to scare birds away from the orchard.169 Plaintiffs, neighboring homeowners, brought suit for nuisance.170 The trial court reasoned that, “because the farm preexisted the residential development,” the Act barred the claim.171 The appellate court reversed, “conclud[ing] that it is the farming practice or activity that controls, not the fact that a farm predates development.”172 Thus, if a CAFO began a new practice (for example, beginning to use antibiotics again after transitioning to antibiotics-free production173 or beginning to use a new antibiotic) or established their antibiotic usage policies after the plaintiff was established in the area, a plaintiff could argue that her claim is not barred by the Act.
B. Substantial Adverse Effect on Health and Safety
A plaintiff could also bring a successful public nuisance claim, regardless of the establishment date of the CAFO and its activities, by availing herself of the public health and safety exemption. The Act does not protect activities that “ha[ve] a substantial adverse effect on public health and safety.”174 Section 7.48.305(2) presumes that agricultural activities do not adversely affect public health if they are “undertaken in conformity with all applicable laws and rules.”175
The extent to which section 7.48.305(2)’s presumption is rebuttable has not yet been tested in court, but past case law suggests that a plaintiff could rebut the presumption. Courts have held that “a farmer does not have immunity if a plaintiff can establish: (1) the agricultural activity has a substantial adverse effect on public health and safety; (2) the activity is inconsistent with good agricultural practices, laws, and rules; or (3) the activity was not established prior to surrounding nonagricultural activities.”176 Thus, a plaintiff could conceivably demonstrate that an agricultural activity had a substantial adverse effect on public health and safety without showing that the activity is inconsistent with good agricultural practices, applicable laws, and rules.177
Moreover, the legislative history supports this interpretation. Prior to its passage, the bill stated that the covered agricultural practices were “conclusively presumed to be reasonable.”178 The Washington State Senate adopted an amendment to “strike conclusively” from the statute,179 and the bill as passed did not contain “conclusively.”180 The discussion in the Senate demonstrated that the removal of “conclusively” was meant to create a rebuttable presumption, as demonstrated by the following interchange:
Senator Rasmussen:
Senator Gaspard, I am a little bit concerned, and it may need a further amendment with this bill. It provides that agricultural activities conducted on farm land if consistent with good agricultural practices and established prior to surrounding non-agricultural activities are, conclusively presumed to be reasonable and therefore do not constitute a nuisance. I can have a place right adjacent to this farm land, you might scatter right up to my fence some very fresh, fragrant fertilizer which might be consistent with good agricultural practices, it might not be detrimental to health, though you think you are going to die anyway when you smell it, and yet this would not constitute a nuisance activity and this is what you are saying in this law, that it is not a nuisance as long as it is used for agricultural purposes. Is that correct?
Senator Gaspard:
Senator Rasmussen, that is one of the reasons we took out ‘conclusively’. There is a presumption here and, of course, with the presumption to be reasonable you have a certain amount of proof to overcome that presumption. If we would have had ‘conclusively presumed’ then it would have been much harder to overcome that and it would in all effect probably been very hard to overcome a ‘conclusively presumed’ situation. That is why we took out ‘conclusively’.181
The language used to describe the presumption has remained unchanged since 1979, and thus the legislative history indicates intent to create a rebuttable presumption.182
By demonstrating the substantial risks to health and safety from the CAFO’s activities, a plaintiff could rebut the statutory presumption and thus proceed with the claim.
V. Policy Suggestions
While public nuisance claims offer a potential path, litigation will be reactive, not proactive. Proactive solutions to prevent public health crises from AR-bacteria must come from policy. This Essay proposes two broad policy changes: increased monitoring and better regulation.
1. Increased Monitoring. — Despite the ability to track changing risks from AR-bacteria by sampling environmental sources and infected individuals, the United States largely does not attempt to track the emergence of AR-bacteria at CAFOs and other agricultural facilities. Creating a framework for a comprehensive monitoring system could allow early identification of threats and lower risks to public health. Expanding the National Antimicrobial Resistance Monitoring System (NARMS) — a collaborative program between the FDA, the CDC, the USDA, and state and local public health departments and universities — is the obvious choice.183 NARMS tracks AMR in infected individuals, retail meats, and food animals,184 with the objective of “promot[ing] interventions that reduce resistance among foodborne bacteria,” “conduct[ing] research to better understand the emergence, persistence, and spread of [AMR],” and providing data to the FDA to inform its regulation of antimicrobial drugs for animals.185
Though NARMS offers a wonderful framework for tracking agriculture-associated AMR, it processes far too few samples to effectively track trends. From 2014 to 2023, the program has annually tested fewer than 2,500 samples from beef cows, 1,500 samples from dairy cows, 1,500 samples from pigs raised for pork, 500 samples from turkeys, and 1,000 samples from chicken annually.186 In 2024, over 30 million cows, 125 million pigs, 195 million turkeys, and 9 billion chickens were slaughtered.187 The USDA should take samples from more animals to gain a better picture of emerging AMR and quickly identify the sources of outbreaks.
2. Increased Regulation. — As discussed in Part I, current antibiotic regulation has not meaningfully reduced the quantity of medically important antibiotics used in animal agriculture in the United States. The FDA should align its regulatory approach with OneHealth and EU regulatory models.188 In particular, the FDA should restrict prophylaxis use to extraordinary cases and should restrict metaphylaxis use to situations in which the risk of the spread of disease “is high and . . . no appropriate alternatives are available.”189
Conclusion
The rising risks from AR-bacteria demand action. The regulatory scheme does not adequately protect the public, and the burden is falling to private parties and state and local governments to seek justice for communities and individuals impacted by AR-bacteria. As this Essay outlines, public nuisance offers a viable pathway to hold CAFOs accountable for their overuse of antibiotics. The claim is made possible in large part by genetic sequencing technologies that make it possible to connect AR-bacteria isolated from infections and from the environment with a specific CAFO — with modern problems (overuse of antibiotics) come modern solutions (genetic sequencing).
Other options are also available. More research is needed into public nuisance claims in other states and the viability of other types of theories such as negligence; trespass; federal statutory claims (perhaps under the Resource Conservation and Recovery Act or the Clean Water Act); and consumer protection theories relating to the risks to consumers from AR-bacteria in purchased meat, dairy, and egg products.190 Regardless of the theory, the continual improvement in scientific technologies and the rising risks from antibiotic resistance suggest that these claims will become stronger and more important over time. Outside of litigation, increased monitoring of antibiotic resistance and improved regulation of antibiotics will also be key to facing this public health crisis. Ultimately, policy, regulation, and litigation must must work in tandem to protect communities from the threats posed by antibiotic resistance.