By Margaret Todd
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On September 26, 2019, the Pennsylvania Supreme Court sided with a local farmer when it issued a decision that overturned a county ordinance based on preemption. In the case, Berner, et al. v. Montour Township Zoning Hearing Board, et al., the court considered to what extent Pennsylvania’s Nutrient Management Act preempted local nutrient management regulation over agricultural operations that are not otherwise subject to the state’s requirements. Pennsylvania’s highest state court found that the Montour Township regulation conflicted with the state’s Nutrient Management Act because it imposed stricter or inconsistent requirements on farmers.
What is Preemption?
Preemption is a topic we blog about often in connection to a variety of issues, including the recent pesticide ban in Montgomery County, siting of solar panels, and the planting of medical marijuana. For more about these topics, search our previous blog posts.
In a nutshell, preemption occurs when a state law completely occupies a field or, in other words, covers all aspects of a topic to such an extent that a local law on the same subject is trumped or overruled by the state law. For example, if a local law attempts to prohibit something the state law would allow, the local law will conflict with state law and therefore be preempted. The state law can also expressly prohibit local governments from regulating on the subject of the law.
The Berner Case Facts
Pennsylvania’s Nutrient Management Act, 3 Pa.C.S. §§ 501-522, (the Act) requires certain agricultural operations, including CAFOs and other animal feeding operations (AFOs), to comply with various standards regarding the management of livestock manure, among other “nutrients,” by creating Nutrient Management Plans (NMP) and accounting for potential adverse effects. The Act also exempts smaller operations from the NMP requirements.
Montour Township enacted a regulation that required farmers who wanted to raise hogs to apply for a special exception from the local zoning board and required applicants to submit facility designs and provide legally binding assurances with performance guarantees to demonstrate that manure management plans would not have adverse impacts (like causing run-off water pollution) upon adjacent properties. The assurances are those that would typically be accounted for in an NMP in order to comply with the state’s Act.
In the Berner case, the Applicant filed an application to build a swine nursery barn with a manure storage facility with the Montour Township Zoning Hearing Board in 2013. However, the Applicant’s operation did not meet the criteria of an agricultural operation established in the Act and was not legally required to prepare an NMP. Applicant did not voluntarily create an NMP for his proposed use.
Applicant argued that the Commonwealth Court’s interpretation would allow local regulation of nutrient management and the imposition of more burdensome restrictions on lower intensity agricultural operations that are not required to submit an NMP than the Act imposes on higher intensity agricultural operations.
The court noted that the Act contains a provision that explicitly outlines how local regulation of nutrient management is preempted. Specifically, § 519(d) states that “municipalities are permitted to adopt regulations to the extent that they are consistent with and no more stringent than the requirements of the Act and its regulations.”
The court concluded that the Legislature deliberately excluded small operations “for purposes of sparing lower intensity non-NMP operations from the complex and expensive burden of adoption of an NMP.” Therefore, localities cannot attempt to regulate those operations by creating stricter standards than the Act entails.
What About Maryland’s Nutrient Management Act?
States develop and implement nutrient management plan laws pursuant to the federal Clean Water Act, which prohibits the “discharge of any pollutant” to waters of the United States, except as authorized by a permit. Maryland adopted its nutrient management regulations for the implementation of the 1998 Water Quality Improvement Act.
Maryland state law requires all farmers grossing $2,500 a year or more, or livestock producers with 8,000 pounds or more of live animal weight, to follow nutrient management plans when fertilizing crops and managing animal manure. Maryland does not have any examples of a county ordinance legal challenge for establishing stricter limits for Nutrient Management Plan requirements. Section 8-803.8 of Maryland’s law provides that “a local government entity may not adopt laws, regulations, rules, ordinances, or standards regulating fertilizer and its application to turf.” For more information on Maryland’s nutrient management regulations, visit the Maryland Department of Agriculture website.
The Maryland Department of Agriculture reminds farmers that December 15 is the last day to spread manure and other organic nutrient sources on cropland. Farmers may resume nutrient applications on March 1 as long as fields are not saturated, snow-covered, or hard-frozen.