Agricultural Law Weekly Review – October 3, 2019

On September 26, 2019, the Supreme Court of Pennsylvania reversed the Commonwealth Court’s order, holding that local governments cannot impose stricter nutrient management requirements on small farms than those already imposed upon large agricultural operations under the state Nutrient Management Act (NMA) (Russell Berner, et al., v. Montour Township, et al., No. 39 MAP 2018).  The question of whether and to what extent the NMA preempts local regulation of agricultural operations that are not “concentrated agricultural operations” (CAOs) became the central issue of this case.  Under the NMA, there is a requirement that CAOs must develop and implement a Nutrient Management Plan (NMP) while smaller agricultural operations are not subject to this obligation.  The main objection here was that appellant Scott Sponenberg did not include an NMP when applying for a special exception with the Montour Township to construct a swine barn and manure storage facility.  According to the appellant, the proposed project was not required to have an NMP because it did not qualify as a larger agricultural operation under the NMA.  In the majority opinion, the Supreme Court explained that the NMA preemption provision applies to agricultural operations, regardless of whether they are CAOs or non-CAOs. The court specifically emphasized that not to allow preemption of local regulations for small agricultural operations would be “ironic” knowing that the state legislature never intended to allow local municipalities to burden and increase pressure on small-scale farmers with more stringent regulations compared to the regulations imposed upon larger farms.