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Yes to Cannabis!

The Brief; Chicago Vol. 49, Iss. 4,  (Summer 2020): 32-37.

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Just Not in My Backyard

An Analysis of Odor-Based Claims in the Cannabis Industry

Cannabis cultivation has had a significant and often transformative impact on the local economies and communities where it is grown. Cannabis has become a multibillion-dollar industry, which is projected to continue to expand as more jurisdictions fully legalize cannabis. By way of example, industrial hemp-which the 2018 Farm Bill removed from the Controlled Substances Act-was grown on approximately 511,442 acres in 2019, representing a 455 percent increase over 2018.1 Though the coronavirus pandemic may curtail some of the growth projections for the industry in the short term, states like California, Michigan, Oregon, and Pennsylvania identified cannabis dispensaries as "essential businesses," allowing sales to continue notwithstanding the lockdowns.2

With the production of industrial hemp being legalized at the federal level, and more widespread legalization of cannabis generally at the state level, communities are increasingly faced with cannabis being grown outdoors in agricultural fields. Neighbors of hemp and cannabis operations have begun to push back-largely citing odor concerns-both in court and with local regulators. The result has been environmental enforcement actions brought by state regulators, state-level nuisance suits, and claims brought under the Racketeer Influenced and Corrupt Organizations Act (RICO). This article discusses and analyzes these claims and their impact on the continuing growth of the industry.

Environmental Enforcement Actions

Among the first-line responses that can be employed by government entities seeking to enforce their authority to tamp down odors are enforcement actions. With respect to cannabis odors, such enforcement authority falls under the jurisdiction of the various state and local air regulatory bodies, such as California's Air Quality Management Districts and Colorado's Air Quality Control Commission. However,Washington's Pollution Control Hearings Board (PCHB) has been at the forefront of the issue, having issued six cannabis odor decisions since...