Concentrated Animal Feeding Operations / Concentrated Animal Operations (CAFOs and CAOs)
Is there preemption?
Yes, but local authorities are not totally preempted.
What is the preemption statute?
The Nutrient Management Act (NMA) contains a provision, 3 Pa.C.S. § 519, which explicitly preempts (most) local regulation.[1] The NMA, 3 Pa.C.S. §§ 501-522, regulates nutrients which emanate from large-scale agricultural operations qualifying as CAFOs or CAOs.[2]
Are there exceptions?
Yes. The Pennsylvania Legislature made a deliberate distinction between big agricultural operations that fall within the NMA because they can afford compliance with a Nutrient Management Proposal (NMP) required by the NMA, and smaller operations that cannot afford compliance and do not fall within the NMA’s scope.[3] A local authority may regulate nutrients from agricultural operations not subject to the NMA “to the extent that the local regulation is [not] more stringent than, inconsistent with, or in conflict with [the NMA’s] requirements.”[4]
However,
Example:
Montour Township’s Zoning Hearing Board created a zoning ordinance allowing hog raising in agricultural districts by special exception.[5] The criteria for a special exception include a requirement to:
“submit facility designs and legally binding assurances with performance guarantees which demonstrate that all facilities necessary for manure and wastewater management, materials storage, water supply and processing or shipping operations will be conducted without adverse impact upon adjacent properties.”[6]
The Ordinance lists an array of adverse environmental impacts to consider.[7]
The Applicant for a special exception allowing hog farming had an operation too small for the NMA/NMP to apply to it.[8] The Applicant and the Objectors disputed the significance of the adverse impacts analysis requirement because the NMA includes no mention of an adverse impacts analysis, and the issue became whether this aspect of the Ordinance was preempted because it was more restrictive than the NMA.[9] The Pennsylvania Supreme Court ruled that the NMA preempted the adverse impact analysis portion of the Ordinance because it added requirements beyond those specified in the NMA even though the operation was too small to be subject to the NMA/NMP.[10] However, the decision allowed regulation of agricultural operations not covered by the NMA/NMP “to the extent that the local regulation is [not] more stringent than, inconsistent with, or in conflict with [the NMA’s] requirements.”[11]
[1] Berner v. Montour Twp. Zoning Hearing Bd., 217 A.3d 238, 240 (Pa. 2019) (“The [Nutrient Management] Act . . . contains a provision outlining the manner in which the Act, as well as the regulations and guidelines promulgated pursuant to it, preempt local regulation of nutrient management.”).
[2] Id.
[3] Id. at 250. See also, Commonwealth v. Locust Twp., 49 A.3d 502 (Pa. Commw. Ct. 2012) (holding that township ordinance requiring farms not large enough to qualify as CAOs or CAFOs under the NMA to submit odor and nutrient management proposals was in conflict with NMA provision that smaller farms not be required to submit such proposals, and was thus preempted).
[4] Berner, 217 A.3d 238, 241, 248 (Pa. 2019) (“Taken together, the provisions of Section 519 of the [NMA] do not evidence an intent on behalf of the Legislature to preclude all local regulation in the field of nutrient management”).
[5] Id. at 242-243.
[6] Id. at 243 (quoting Montour Township, General Codes, Ch. 27 (Zoning), § 402(1)(E)).
[7] Id.
[8] Id.
[9] Berner, 217 A.3d 238. 244 (Pa. 2019).
[10] Id. at 249.
[11] Id. at 248.