Opinion
No. 39 MAP 2018
09-26-2019
Russell BERNER and Donna Berner, Kendall Dobbins, Nathan Roberts, Roberts Realty, LLC, Robert D. Clark and Robert W. Webber v. MONTOUR TOWNSHIP ZONING HEARING BOARD and Scott Sponenberg Appeal of: Scott Sponenberg
OPINION
The Nutrient Management Act (Act), 3 Pa.C.S. §§ 501 - 522, requires certain agricultural operations to comply with various standards regarding the management of livestock manure, among other "nutrients." The Act also 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. See id. § 519, infra at page 242. In this appeal, we are tasked with determining whether, and if so, to what extent, the Act preempts local regulation of nutrient management by agricultural operations that are not otherwise subject to the Act's requirements. For the reasons discussed below, we hold that the Act preempts local regulation of agricultural operations not subject to the Act's requirements to the extent that the local regulation is more stringent than, inconsistent with, or in conflict with those requirements. Because the Commonwealth Court reached a contrary result, we reverse the order of that court.
See 3 Pa.C.S. § 503 (defining "nutrient" to include livestock manure); see also 25 Pa. Code § 83.201 (same). We further note that the Act contains provisions relating to odor management, which are not at issue in this appeal and thus will not be addressed herein.
I. Legal Background
A. State Law
In order to facilitate a better understanding of the issue before us, we begin by expanding upon our brief statements on the Act made above. At the heart of the Act is the mandate that certain agricultural operations adopt a "nutrient management plan" or "NMP." See Burkholder v. Zoning Hearing Bd. of Richmond Twp. , 902 A.2d 1006, 1008 (Pa. Cmwlth. 2006) (observing that "[t]he preparation and implementation of [an NMP] is the centerpiece" of the Act). An NMP is "[a] written site-specific plan which incorporates best management practices to manage the use of plant nutrients for crop production and water quality protection consistent with the criteria established in [certain sections of the Act]." 3 Pa.C.S. § 503.
Under the Act, operators of "concentrated animal operations" or "CAOs" must develop and implement an NMP. Id. § 506(b). In contrast, smaller agricultural operations that are not intensive enough to meet the definition of a CAO may develop an NMP voluntarily. Id. § 506(h). Non-CAOs that have voluntarily submitted an NMP are called "voluntary agricultural operations" or "VAOs." 25 Pa. Code § 83.201 (defining VAO, in relevant part, as "[a]ny operation that voluntarily agrees to meet the requirements of this subchapter even though it is not otherwise required under the [A]ct or this chapter to submit a nutrient management plan"). "CAOs, VAOs and operations required to develop compliance plans under section 506(j) of the [A]ct" are collectively referred to as "NMP operations." Id.
The definition of what constitutes a CAO is rather technical, but it suffices to say that they are larger, higher intensity agricultural operations. See 3 Pa.C.S. § 503 (defining CAO as "[a]gricultural operations meeting the criteria established under this chapter"); id. § 506(a) (providing a definition for CAOs while further requiring review of the criteria used to identify CAOs and the making of appropriate changes to the definition by regulation); 25 Pa. Code § 83.201 (defining CAOs as "[a]gricultural operations with eight or more animal equivalent units [ (AEUs), defined as 1,000 pounds live weight of livestock or poultry animals, regardless of the actual number of animals, 3 Pa.C.S. § 503 ; see also 25 Pa. Code § 83.201,] where the animal density exceeds two AEUs per acre on an annualized basis").
Section 506(j) of the Act provides an exception to this general proposition: "Any agricultural operation found to be in violation of the act of June 22, 1937 (P.L. 1987, No. 394), known as The Clean Streams Law, may be required to submit a nutrient management plan within three months of notification thereof and implement the plan in order to prevent or abate such pollution." 3 Pa.C.S. § 506(j) (footnote omitted). Thus, in limited circumstances, it is possible that non-CAOs would have to submit an NMP.
NMP operations must meet the NMP requirements set forth in various regulations promulgated pursuant to the Act. Id. § 83.261. Among these regulations is the one at the center of this dispute, Section 83.351, which provides "[t]he minimum standards [for] new manure storage facilities and the expansion of existing manure storage facilities, as part of a plan developed for an NMP operation." Id. § 83.351(a). While these standards need not be set forth in detail for purposes of this appeal, it is worthwhile to note that they are aimed at protecting water quality and preventing migration of nutrients offsite. See, e.g. , id. § 83.351(a)(1) (explaining that "[m]anure storage facilities shall be designed, constructed, located, operated, maintained, and, if no longer used for the storage of manure, removed from service, in a manner that protects surface water and groundwater quality, and prevents the offsite migration of nutrients").
With respect to preemption, Section 519 of the Act sets forth the preemptive effect the Act, its regulations, and its guidelines have on local regulation of nutrient management. Section 519 provides, in relevant part, as follows:
(a) General.-- This chapter and its provisions are of Statewide concern and occupy the whole field of regulation regarding nutrient management ... to the exclusion of all local regulations.
(b) Nutrient management.-- No ordinance or regulation of any political subdivision or home rule municipality may prohibit or in any way regulate practices related to the storage, handling or land application of animal manure or nutrients or to the construction, location or operation of facilities used for storage of animal manure or nutrients or practices otherwise regulated by this chapter if the municipal ordinance or regulation is in conflict with this chapter and the regulations or guidelines promulgated under it.
* * *
(d) Stricter requirements.-- Nothing in this chapter shall prevent a political subdivision or home rule municipality from adopting and enforcing ordinances or regulations which are consistent with and no more stringent than the requirements of this chapter and the regulations or guidelines promulgated under this chapter. No penalty shall be assessed under any such local ordinance or regulation under this subsection for any violation for which a penalty has been assessed under this chapter.
3 Pa.C.S. § 519. We must determine whether, pursuant to Section 519, the Act and its attendant regulations and guidelines preempt the local ordinance at issue here, discussed below.
While not cited by the parties or the lower tribunals, the Act's regulations also include a preemption provision. Section 83.205 of the Act's regulations provides:
(a) The act and this subchapter are of Statewide concern and occupy the whole field of regulation regarding nutrient management to the exclusion of all local regulations.
(b) After October 1, 1997, no ordinance or regulation of any political subdivision or home rule municipality may prohibit or in any way regulate practices related to the storage, handling or land application of animal manure or nutrients or to the construction, location or operation of facilities used for storage of animal manure or nutrients or practices otherwise regulated by the act or this subchapter if the municipal ordinance is in conflict with the act and this subchapter.
(c) Nothing in the act or this subchapter prevents a political subdivision or home rule municipality from adopting and enforcing ordinances or regulations which are consistent with and no more stringent than the requirements of the act and this subchapter.
(d) No penalty will be assessed under any valid local ordinance or regulation for any violation for which a penalty has been assessed under the act or this subchapter.
25 Pa. Code § 83.205.
B. Local Law
The municipality involved in this dispute is Montour Township (Township), Columbia County. The Township has a zoning ordinance (Ordinance) under which the Township has been divided into different districts, including agricultural districts. Montour Township, General Codes, Ch. 27 (Zoning), § 300(1). The Ordinance further permits several "Intensive Agriculture and Agricultural Support" uses, including "hog raising," in agricultural districts by special exception. Id. §§ 401(3), 402(1)(E). While the Ordinance sets forth various criteria an applicant must meet to obtain special exception approval for hog raising, the criterion most relevant to this appeal requires the applicant to:
"[A] special exception ... is a use which is expressly permitted in a given zone so long as certain conditions detailed in the ordinance are found to exist." Broussard v. Zoning Bd. of Adjustment of City of Pittsburgh , 589 Pa. 71, 907 A.2d 494, 499 (2006).
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.
Id. § 402(1)(E) (further explaining that "adverse impacts may include, but are not limited to, groundwater and surface water contamination, groundwater supply diminution, noise, dust, odor, heavy truck traffic, and migration of chemicals offsite"). While the Ordinance contains this adverse impact requirement, it is undisputed that there is no such requirement contained in the Act or its regulations. It is this circumstance that forms the basis of the dispute herein.
We will refer to this requirement as the "adverse impact requirement" throughout this Opinion.
II. Factual Background and Procedural History
Scott Sponenberg (Applicant) owns property used as a livestock and crop farm that lies in an agricultural district in the Township. In April 2013, Applicant filed an application for a special exception with the Montour Township Zoning Hearing Board (ZHB) based on his desire to build a swine nursery barn with under building concrete manure storage (i.e. , a manure storage facility) on his property. Notably, Applicant's proposed use does not constitute an NMP operation, as it does not meet the criteria of an agricultural operation that is required to have an NMP, and Applicant has not voluntarily created an NMP for his proposed use. Thus, Applicant's planned use is not subject to the various requirements established under the Act, which apply to NMP operations.
A prolonged procedural history involving litigation of various issues, most of which are irrelevant to this appeal, followed the filing of the special exception application. In short, the ZHB initially granted Applicant's special exception application subject to conditions. Following two appeals filed by various objectors, including Russell Berner, Donna Berner, Kendall Dobbins, Robert D. Clark, and Robert W. Webber (Objectors), the matter returned to the ZHB by way of order from the Commonwealth Court for the ZHB to render necessary findings regarding Applicant's compliance with the Ordinance's special exception requirements.
On remand, the ZHB permitted the parties to file proposed findings of fact and conclusions of law, and it ultimately adopted those submitted by Applicant. Included in the findings and conclusions were determinations regarding the preemptive effect of the Act and its regulations on the Ordinance's adverse impact requirement. Specifically, the ZHB observed that the Act's regulations comprehensively set forth the standards regarding the design, construction, location, operation, and maintenance of manure storage facilities. The ZHB further explained that those regulations, and Section 83.351 in particular, do not include an adverse impact requirement as the Ordinance does. Relying upon Subsection 519(b), part of the Act's preemption provision, supra at page 242, and making no distinction between NMP and non-NMP operations, the ZHB thus concluded that the adverse impact requirement was more restrictive than, and in conflict with, the Act and its regulations. As a consequence, the ZHB concluded that the Act and its regulations preempted the Ordinance's adverse impact requirement, rendering it unnecessary for Applicant to comply with that requirement.
Objectors appealed, and the trial court affirmed the ZHB's decision without taking additional evidence. Objectors further appealed to the Commonwealth Court, which concluded in a unanimous, published opinion that the ZHB erred in finding the Ordinance's adverse impact requirement preempted by the Act and its regulations. Berner v. Montour Twp. Zoning Hearing Bd. , 176 A.3d 1058, 1078 (Pa. Cmwlth. 2018). The Commonwealth Court first observed that, under Subsection 519(a) of the Act, the General Assembly clearly intended to occupy the whole field of nutrient management. Id. at 1077 (quoting Office of Atty. Gen. ex rel. Corbett v. Locust Twp. , 49 A.3d 502, 506 (Pa. Cmwlth. 2012) ). The court further explained that, under Subsections 519(b) and (d), the Act prohibits local regulation that conflicts with the Act, its regulations, and its guidelines, but allows local regulation that is consistent with and no more stringent than the state law. Id. (quoting Locust Twp. , 49 A.3d at 506-07 ).
Turning to the facts of this case, the Commonwealth Court reasoned that Section 83.351 applies only to certain manure storage facilities that are "part of a plan developed for an NMP operation." Id. at 1078 (quoting 25 Pa. Code § 83.351(a) ). The Commonwealth Court reasoned that Applicant's proposed use was not an NMP operation, as it did not have a mandatory or voluntary NMP; thus, the court concluded that Section 83.351 was inapplicable to the proposed use. According to the Commonwealth Court, because Section 83.351 did not apply to Applicant's proposed use, it was subject to the Ordinance's adverse impact requirement. In other words, the Court concluded that the Act and its regulations did not preempt the Ordinance's adverse impact requirement under the circumstances presented, where there was no NMP subjecting Applicant's use to the state law requirements. Accordingly, and for other reasons not relevant to this appeal, the Commonwealth Court reversed the trial court's decision affirming the ZHB's grant of Applicant's special exception application. Applicant then filed a petition for review with this Court.
Again, NMP operations are those operations that have an NMP, whether mandatory or voluntary, in place. See supra at pages 240–42.
III. Issue
We granted discretionary review to address the following question, as stated by Applicant:
Whether the Commonwealth Court erred by holding that the [Act] only preempts local ordinances as applied to farms that have an approved [NMP] and that small farms that are not required to submit [NMPs] can be subjected to more stringent regulation than larger more intensive agricultural operations that are required to obtain approval of a[n NMP] under the [Act].
Berner v. Montour Twp. Zoning Hearing Bd. , 190 A.3d 593 (Pa. 2018) (per curiam ).
IV. Analysis
A. Standard of Review
The issue before us requires us to engage in statutory interpretation. An issue of statutory interpretation presents a question of law for which our standard of review is de novo and our scope of review is plenary. Thomas Jefferson Univ. Hosps., Inc. v. Pa. Dep't of Labor & Indus. , 640 Pa. 219, 162 A.3d 384, 389 (2017). We are guided in our analysis by the Statutory Construction Act, 1 Pa.C.S. §§ 1501 - 1991, which provides that the object of all statutory interpretation is to ascertain and effectuate the intent of the General Assembly. Id. § 1921(a). Generally, a statute's plain language provides the best indication of legislative intent. Miller v. County of Centre , 643 Pa. 560, 173 A.3d 1162, 1168 (2017). When the statutory language is ambiguous, however, we look to the various factors listed in 1 Pa.C.S. § 1921(c) to ascertain its meaning. LTV Steel Co. v. Workers' Comp. Appeal Bd. (Mozena) , 562 Pa. 205, 754 A.2d 666, 674 (2000). Further, in matters of statutory interpretation, "[e]very statute shall be construed, if possible, to give effect to all its provisions." 1 Pa.C.S. § 1921(a). We also presume that "the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable," and that "the General Assembly intends the entire statute to be effective and certain." Id. § 1922(1)-(2).
B. Arguments
Applicant argues that the Act preempts the Township's attempt to regulate nutrient management through the Ordinance. With respect to the Act's preemption provision, Applicant contends that the Act expressly and unambiguously preempts the field of nutrient management to the exclusion of all other local regulation pursuant to Subsection 519(a). While the Act does not define "nutrient management," Applicant argues that the General Assembly intended the term to mean "anything regulating the manner or method that manure is managed," and encompass the land application and storage of animal manure and related activities. Applicant's Brief at 25, 28 (relying upon the Act's definition of "nutrient," supra at page 240 n.1, and "best management practice"). Applicant further reads Subsections 519(b) and (d) to reserve the ability of municipalities to adopt ordinances and regulations concerning zoning and land use matters traditionally in its purview, or what Applicant calls "non-operational and non-nutrient aspects" of a proposed manure management operation, provided that there is no conflict with the Act. Id. at 29. Applicant argues that the Ordinance is preempted because it both regulates nutrient management and otherwise conflicts with the Act.
The Commonwealth of Pennsylvania has filed an amicus curiae brief in support of Applicant. While the Commonwealth agrees with the Commonwealth Court's characterization of the Act's preemption framework as prohibiting local regulation to the extent that it is more strict than or inconsistent with the Act, the Commonwealth argues that the court incorrectly applied that framework in this case, advancing and expanding upon many of the arguments made by Applicant in support of its position.
The Pennsylvania Farm Bureau and PennAg Industries Association have also filed an amici curiae brief on behalf of Applicant. In furthering the arguments made by Applicant, these organizations highlight the challenges faced by Pennsylvania's farm families in sustaining their agricultural operations. Amici also note the burdens imposed upon both smaller agricultural operations and the Act's compliance system should the Commonwealth Court's decision stand, given that it would require those operations to submit voluntary NMPs in order to receive preemption protection under the Act.
The Act defines "best management practice" as "[a] practice or combination of practices determined by the [State Conservation Commission] to be effective and practicable ... to manage nutrients to protect surface and ground water." 3 Pa.C.S. § 503 ; see also 25 Pa. Code § 83.201 (same). The Act's definition includes a non-exhaustive list of items such as manure storage facilities. 3 Pa.C.S. § 503.
As examples of permitted local regulation, Applicant posits that municipalities can determine the location of zoning districts, the appropriate zoning districts where agricultural uses can be located, and whether such uses would be permitted as of right or upon special exception, so long as the municipality's action is not in conflict with the Act. Applicant's Brief at 29. While Applicant's argument is less than clear as it relates to concepts of field and conflict preemption, it is unnecessary for our purposes to discern its exact nature.
Applicant additionally claims that, through the enactment of various statutes, the General Assembly has created a comprehensive system of state regulation governing all agricultural operations and the field of nutrient management. According to Applicant, these statutes include the Act, as well as the Clean Streams Law, 35 P.S. §§ 691.1 - 691.1001 ; the Agricultural Area Security Law, 3 P.S. §§ 901 - 915 ; the Right to Farm Act, 3 P.S. §§ 951 - 957 ; and the Municipalities Planning Code (MPC), 53 P.S. §§ 10101 - 11202. Applicant contends that the Act should be read in pari materia with these statutes, which were all enacted to protect Pennsylvania's agricultural operations from unreasonable local regulation and provide uniform standards throughout the state. Applicant's Brief at 19-24 (relying upon 3 Pa.C.S. § 521 (providing, in relevant part, that the Act "shall not be construed as modifying, rescinding or superseding any other statute ... and shall be read in pari materia with other statutes")). Applicant contends that preemption plays an integral role in advancing these purposes.
Applicant also argues that the Commonwealth Court erred in holding that the Act and its regulations did not preempt the Ordinance's adverse impact requirement because Applicant's farm lacked an approved NMP. Applicant contends 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 like Applicant's that are not required to submit an NMP than the Act imposes on higher intensity agricultural operations.
Applicant claims that the General Assembly did not intend for lower intensity agricultural operations, which make up the vast majority of agricultural operations in the Commonwealth, to face more stringent regulation than larger agricultural operations subject to the Act's requirements. Applicant argues that the Commonwealth Court's interpretation goes against the Legislature's intent to create a statewide ceiling for regulation of nutrient management, does not give effect to all of Section 519's provisions, and permits the Township to exceed the traditional scope of zoning by allowing it to regulate the operational details of manure management facilities.
Finally, Applicant contends that the Commonwealth Court's decision is not supported by case law. Applicant's Brief at 39-45 (relying upon, inter alia , Locust Twp. , 49 A.3d at 510-12 (Pa. Cmwlth. 2012) (explaining that the distinction between larger and smaller farms made by the Legislature in the Act was intentional and finding preemption of a local setback requirement because, inter alia , it applied to small farms that were excluded from the Act's lesser setback requirements)). Objectors counter that this case is to be analyzed under principles of conflict preemption, which requires Applicant to demonstrate an irreconcilable conflict between the Act and the adverse impact requirement of the Ordinance, making it impossible to comply with both. Objectors argue that Applicant fails to identify such a conflict. Objectors further assert that the Commonwealth Court correctly found no preemption on the basis that Applicant's proposed use lacked an NMP, rendering the requirements of the Act and its regulations inapplicable to it. Objectors claim that, if Applicant wants the benefit of preemption protection under the Act, then he may file a voluntary NMP.
Objectors additionally challenge Applicant's claim that the Ordinance's adverse impact requirement is more restrictive than Section 83.351 of the Act's regulations and goes beyond the permissible scope of zoning by imposing specific substantive requirements and regulating operational details of manure storage facilities. Further, Objectors argue that interpreting the Act in pari materia with other statutes pertaining to agricultural operations does not change the outcome in this case, as there is likewise no conflict between the adverse impacts requirement of the Ordinance and those statutes. Finally, Objectors argue that the Commonwealth Court's decision in this case is consistent with precedent from that court. Objector's Brief at 30-34 (citing, inter alia , Locust Twp. , 49 A.3d at 508-09 (concluding that an ordinance's requirement that an applicant for land use approval submit a site plan was not preempted by the Act, which mandated that site plans be included with NMPs, on the basis that the requirements served different purposes and the ordinance did not regulate nutrient management); Walck v. Lower Towamensing Twp. Zoning Hearing Bd. , 942 A.2d 200, 207-08 (Pa. Cmwlth. 2008) (holding that, in the absence of an NMP, the Act and its regulations did not apply to preempt the local ordinance at issue)).
C. Discussion
Generally, this Court has discussed preemption in terms of three forms: (1) express preemption, (2) conflict preemption, and (3) field preemption. See, e.g. , Nutter v. Dougherty , 595 Pa. 340, 938 A.2d 401, 404 (2007). With express preemption, "the state enactment contains language specifically prohibiting local authority over the subject matter." Huntley & Huntley, Inc. v. Borough Council of Borough of Oakmont , 600 Pa. 207, 964 A.2d 855, 863 (2009). Here, the Act contains an express preemption provision, Section 519, the relevant portions of which we set forth again here:
Conflict preemption "acts to preempt any local law that contradicts or contravenes state law." Nutter , 938 A.2d at 404. As for field preemption, "the state regulatory scheme so completely occupies the field that it appears the General Assembly did not intend for supplementation by local regulations." Huntley , 964 A.2d at 863.
(a) General.-- This chapter and its provisions are of Statewide concern and occupy the whole field of regulation regarding nutrient management ... to the exclusion of all local regulations.
(b) Nutrient management.-- No ordinance or regulation of any political subdivision or home rule municipality may prohibit or in any way regulate practices related to the storage, handling or land application of animal manure or nutrients or to the construction, location or operation of facilities used for storage of animal manure or nutrients or practices otherwise regulated by this chapter if the municipal ordinance or regulation is in conflict with this chapter and the
regulations or guidelines promulgated under it.
* * *
(d) Stricter requirements.-- Nothing in this chapter shall prevent a political subdivision or home rule municipality from adopting and enforcing ordinances or regulations which are consistent with and no more stringent than the requirements of this chapter and the regulations or guidelines promulgated under this chapter. No penalty shall be assessed under any such local ordinance or regulation under this subsection for any violation for which a penalty has been assessed under this chapter.
See also 25 Pa. Code § 83.205 of the Act's regulations, supra at pp. 242, n.4.
In Subsection 519(a), the General Assembly states its intent for the Act to occupy the entire field of regulation regarding nutrient management to the exclusion of all local regulations. Read in isolation, this provision appears to indicate that the General Assembly intended to prohibit all local regulation of nutrient management. In engaging in statutory interpretation, however, this Court is to give effect to every provision in a statute whenever possible, as it is presumed "that the legislature did not intend any statutory language to exist as mere surplusage." Commonwealth by Shapiro v. Golden Gate Nat'l Senior Care LLC , ––– Pa. ––––, 194 A.3d 1010, 1034 (2018). Thus, we turn to Subsection (b), which provides that municipalities are barred from regulating practices related to, inter alia , the storage of animal manure, the construction of facilities used for storage of animal manure, and practices otherwise regulated by the Act to the extent the local regulation is in conflict with the Act or its regulations. Further, under Subsection (d), 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.
Taken together, the provisions of Section 519 of the Act do not evidence an intent on behalf of the Legislature to preclude all local regulation in the field of nutrient management. Instead, viewed in its entirety, Section 519 of the Act reveals the Legislature's intent to prohibit local regulation of nutrient management only to the extent that it is more stringent than, inconsistent with, or in conflict with the Act or its regulations. Thus, we agree with the Commonwealth Court's analysis as to Section 519 of the Act's preemption framework. We therefore proceed to address that court's application of that framework to the Ordinance's adverse impact requirement.
It is worth noting that the Act and its regulations do not define "nutrient management." However, we find that the term clearly encompasses the activities listed in Subsection 519(b) of the Act, namely, "practices related to the storage, handling or land application of animal manure or nutrients or to the construction, location or operation of facilities used for storage of animal manure or nutrients or practices otherwise regulated by" the Act. 3 Pa.C.S. § 519(b).
As stated previously, the Ordinance's adverse impact requirement mandates that applicants seeking a special exception for hog raising "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." Montour Township, General Codes, Ch. 27 (Zoning), § 402(1)(E). As determined by the ZHB, Section 83.351 of the Act's regulations, which sets forth the minimum standards for manure storage facilities, does not impose this adverse impact requirement on those facilities. By imposing these obligations, which clearly regulate nutrient management and are in addition to those set forth in the Act and its regulations, the Ordinance's adverse impact requirement is in conflict with the Act and its regulations. Accordingly, under Section 519 of the Act, the Act and its regulations preempt the Ordinance's adverse impact requirement.
In reaching its contrary conclusion, the Commonwealth Court reasoned that the Ordinance's adverse impact requirement was not preempted under the circumstances presented because Applicant's use, in any case, is not an NMP operation subject to the requirements set forth in the Act and its regulations. In so doing, the Commonwealth Court determined that because non-NMP operations like Applicant's proposed use are free from the requirements imposed pursuant to the Act, they do not get the benefit of the Act's preemption protection. We conclude that this determination is in contravention of the legislative intent underpinning the Act and, thus, respectfully, was made in error.
One of the purposes for which the Legislature enacted the Act was to "establish criteria, nutrient management planning requirements and an implementation schedule for the application of nutrient management measures on certain agricultural operations which generate or utilize animal manure." 3 Pa.C.S. § 502(1). In furtherance of this purpose, the Act and its regulations impose nutrient management requirements on NMP operations, those being CAOs, VAOs, and operations otherwise required to implement NMPs under Subsection 506(j) of the Act. See 3 Pa.C.S. § 506(b) ; 25 Pa. Code §§ 83.201, 83.261. In contrast, the Act does not impose those requirements on non-NMP operations, but rather gives them the choice to comply with the requirements through submission of a voluntary NMP. See 3 Pa.C.S. § 506(h).
Notably, there are incentives to implementing a voluntary NMP, including its use "as a mitigating factor in any civil action for penalties or damages alleged to have been caused by the management or utilization of nutrients ... pursuant to the implementation." 3 Pa.C.S. § 515.
As the Commonwealth Court aptly explained in Locust Township , "[t]he reason for the distinction is obvious" given that the development and implementation of NMPs is costly and burdensome, circumstances readily recognized by the Legislature. Locust Twp. , 49 A.3d at 511 (further observing that "[t]he cost of compliance appears to have been such a significant concern to the General Assembly that it expressly authorized the [State Conservation Commission] to provide financial assistance ... to existing agricultural operations to implement the mandated plans"); see also 3 Pa.C.S. § 511 (relating to the provision of financial assistance for implementation of NMPs); id. § 502(3) (requiring the State Conservation Commission and other entities "to develop and provide ... financial assistance for nutrient management" as another purpose of the Act). Thus, like the Locust Township court, we view the Legislature's distinction between NMP operations and non-NMP operations to be a deliberate one made for purposes of sparing lower-intensity non-NMP operations from the complex and expensive burden of adoption of an NMP. See Locust Twp. , 49 A.3d at 511.
In Locust Township , the Commonwealth Court was tasked with determining whether the Act preempted various provisions of a local ordinance. Most importantly, the court in Locust Township found a setback requirement in the local ordinance to be preempted by the Act because, inter alia , the local requirement exceeded the maximum setback requirement provided in the Act for CAOs and "applie[d] to farming operations that the General Assembly has deemed to be so small as to justify their exclusion from the lesser [Act] setback requirements for larger farming operations." Locust Twp. , 49 A.3d at 512. Thus, contrary to the holdings by the Commonwealth Court both in this case and in Walck , supra at page 247, the Commonwealth Court in Locust Township did not base its preemption determination on whether smaller farms subject to the local ordinance had an NMP.
The Act's regulations also include various provisions relating to financial assistance for implementing NMPs. See 25 Pa. Code §§ 83.221 -83.233.
In light of the Legislature's intent to spare non-NMP operations from mandatory compliance with the onerous requirements imposed pursuant to the Act, it would indeed be ironic if we found no preemption to exist under the circumstances presented, thus permitting local municipalities to impose upon small agricultural operations standards more burdensome than those placed upon large agricultural operations under the Act. This "irony" runs afoul of basic principles of statutory construction. A finding of no preemption would be unreasonable, if not absurd, and would in fact defeat the legislative purpose of establishing statewide criteria which simultaneously protects the public and encourages this important agrarian industry to thrive in Pennsylvania.
Accordingly, we hold with little difficulty that Section 519 of the Act provides preemption protection from local regulation to both NMP operations subject to the Act's requirements as well as non-NMP operations that are free from them. More specifically, we conclude that the Act preempts any local regulation of nutrient management to the extent the local regulation imposes requirements that are stricter than, inconsistent with, or in conflict with the state law requirements, irrespective of whether a particular agricultural operation has an NMP mandating compliance with the Act. Here, as discussed supra , the Ordinance's adverse impact requirement is inconsistent with the state law requirements because it imposes obligations that are in addition to those included in the Act and its regulations. That is, the Ordinance's adverse impact requirement imposes additional requirements on both NMP operations subject to the state law requirements and non-NMP operations that the Legislature has deemed to be exempt from those lesser requirements. Therefore, the Act and its regulations preempt the Ordinance's adverse impact requirement. Based on the foregoing, we respectfully disagree with the Commonwealth Court's conclusion that Applicant was required to comply with the Ordinance's adverse impact requirement because the Act and its regulations did not preempt that requirement. Accordingly, we reverse the order of the Commonwealth Court.
We reiterate that the Act provides that it "shall be read in pari materia with other statutes." 3 Pa.C.S. § 521. In this regard, Subsection 10603(b) of the MPC provides that zoning ordinances may regulate the location and construction of structures, inter alia , except to the extent "that regulation of activities related to commercial agricultural production would exceed the requirements imposed under [the Act] regardless of whether any agricultural operation within the area to be affected by the ordinance would be a" CAO. 53 P.S. § 10603(b). Thus, our conclusion is further supported by the MPC.
The dissent suggests that our decision today prohibits any local regulation of nutrient management by lower-intensity non-NMP operations. See, e.g. , Dissenting Op. at 251–52. Respectfully, that is not the case. As explained herein, we hold that the Act preempts local regulation of nutrient management by those operations to the extent that the local regulation is more stringent than, inconsistent with, or in conflict with the Act's requirements. To be clear, nothing in our decision prohibits a municipality from regulating lower intensity non-NMP operations outright.
With respect to the particular local provision at issue here, the dissent concludes that Subsection 402(1)(E)'s adverse impact requirement is not in conflict with and thus preempted by the Act because, inter alia , it does not impose standards more onerous than those contained in the Act for NMP operations and presents no obstacle to the execution of any legislative purpose behind the Act. Id. at 244–46. We disagree. The Act's mandates are indeed onerous, a point the dissent does not dispute, and yet they do not require larger, higher-intensity agricultural operations and other NMP operations to submit "legally binding assurances with performance guarantees" demonstrating that manure storage facilities "will be conducted without adverse impact upon adjacent properties" as Subsection 402(1)(E) does. Given the Legislature's objective to spare lower-intensity non-NMP operations from the burden of mandatory compliance with the Act's onerous requirements, allowing municipalities to impose obligations that go beyond those requirements, in our view, clearly presents an obstacle to that objective. Further, given that the imposition of the adverse impact requirement alone is an obstacle to that objective, contrary to the dissent's position, Applicant need not attempt to comply with that local requirement to demonstrate that he is entitled to protection of the Act's preemption provision.
Chief Justice Saylor and Justices Todd, Donohue, Wecht and Mundy join the opinion.
Justice Dougherty files a dissenting opinion.
JUSTICE DOUGHERTY, dissenting
Respectfully, I disagree with the majority's conclusion the Nutrient Management Act (NMA), 3 Pa.C.S. §§ 501 - 522, preempts Montour Township's zoning ordinance, which requires hog raising operations within the Township's delineated agricultural districts to submit legally binding assurances their manure will be managed without adverse impact upon adjacent properties. See Montour Township, General Codes, Ch. 27 (Zoning), § 402(1)(E). In reaching its conclusion, the majority determines Scott Sponenberg's (Applicant's) proposed lower-intensity agricultural operation, consisting of 4,800 swine, is both excused from the requirements of the NMA by virtue of its size, and, paradoxically, also immune from local regulation regarding the impacts of the farm's manure management activities on surrounding properties. See Majority Opinion at 250. The majority's construction of the NMA's preemption provision thereby effectively leaves the localized health and environmental impacts of the manure practices of such farms — which Applicant and his amici contend comprise the vast majority of farms across the Commonwealth — outside of any regulation. In my view, not only is this result untenable, but it is based upon a flawed statutory construction analysis that undermines this Court's jurisprudence with regard to preemption principles, and curtails long-established municipal authority to "make such additional regulations" in furtherance of state law as are reasonable and appropriate to the needs of the particular locality. See Hoffman Mining Co. v. Zoning Hearing Bd. of Adams Twp. , 612 Pa. 598, 32 A.3d 587, 595 (2011), quoting Mars Emergency Med. Servs., Inc. v. Twp. of Adams, Cambria Cty. , 559 Pa. 309, 740 A.2d 193, 195 (1999) (citations omitted). Accordingly, I dissent. As an initial matter, I agree with the majority to the degree it determines local regulation of nutrient management is prohibited "only to the extent that it is more stringent than, inconsistent with, or in conflict with the [NMA] or its regulations." See Majority Opinion at 248. However, I depart from the majority with respect to its construction analysis and resulting application of Section 519, which provides the preemptive effect of the NMA. As a precursor to applying the principles of statutory construction, I note Section 519 of the NMA is unquestionably ambiguous. In interpreting this provision, the Commonwealth Court has observed, "[t]he [NMA's] preemption language is as perplexing as it is verbose[.]" Berner v. Montour Twp. Zoning Hearing Bd. , 176 A.3d 1058, 1076 (Pa. Cmwlth. 2018), quoting Com., Office of Atty. Gen. ex rel. Corbett v. Locust Twp. , 49 A.3d 502, 506-07 (Pa. Cmwlth. 2012). Both Applicant and Objectors rely upon this characterization. See Appellee's Brief at 11, quoting Locust Twp. at 506-07 ; see also Appellant's Brief at 32 ("[T]he varied preemption language used by the General Assembly in § 519 is ‘perplexing,’ and when viewed as a whole, unclear.... [T]he intent of the statute is not clear and free from all ambiguity based on its text[.]"); but cf. Appellant's Brief at 26 ("The General Assembly unambiguously preempted the field of nutrient management to the exclusion of all local regulation.").
As explained in greater detail herein, I do not dispute the NMA places no obligations on Applicant, whose farm is not a concentrated animal operation (CAO) or voluntary agricultural operation (VAO), or otherwise required to implement a nutrient management plan (NMP).
Read in isolation, NMA subsection 519(a) appears to indicate the General Assembly intended to prohibit all local regulation of nutrient management. Majority Opinion at 247–48, quoting 3 Pa.C.S. § 519(a) ("This chapter and its provisions are of Statewide concern and occupy the whole field of regulation regarding nutrient management and odor management, to the exclusion of all local regulations."). However, the preemption provision goes on to undermine its all-encompassing, exclusionary statement by commanding in subsection (b), "no [local regulation] may prohibit or in any way regulate [nutrient management] if the ... regulation is in conflict with this chapter [and its regulations]" — a statement otherwise unnecessary if all local regulation of nutrient management is excluded pursuant to Subsection 519(a). 3 Pa.C.S. § 519(b) (emphasis added). Section 519 further contradicts itself with the following proviso in subsection (d): "nothing in [the NMA] shall prevent [a locality] from adopting and enforcing ordinances or regulations which are consistent with and no more stringent than the requirements of this chapter [and its regulations or guidelines]." 3 Pa.C.S. § 519(d) (emphasis added). Consequently, the preemption clause is facially contradictory and ambiguous, clouding the General Assembly's intent.
Despite its effort to construe these subsections together, see 1 Pa.C.S. § 1921, the majority's construction still excludes subsection 519(a) from the equation, determining the General Assembly did not intend to preclude all local regulation in the field of nutrient management. See Majority Opinion at 247–49. In my alternate view, subsection 519(a) is wholly irreconcilable with the subsequent provisions of Section 519. In such a case, our analysis is guided by other principles of statutory construction. Specifically, where a conflict between two provisions in a statute is irreconcilable, particular provisions prevail over the general ones. See 1 Pa.C.S. § 1933. Additionally, clauses last in order of position shall prevail. See 1 Pa.C.S. § 1934. Thus, the provisions of Section 519 which operate to guide the interpretation of this matter are subsections (b) and (d). Reading those provisions together, if a local regulation of nutrient management is more stringent than, or inconsistent with, or in conflict with the provisions of the NMA (or its regulations or guidelines), then the local government may not prohibit or regulate practices related to nutrient management. Stated otherwise, the local government may prohibit or regulate practices related to nutrient management if its regulation is not more stringent than, inconsistent with, or in conflict with the provisions of the NMA.
Subsection 519(c) is not implicated or addressed in this case. See 3 Pa.C.S. § 519(c).
However, the inquiry does not end at reaching this construction of Section 519, and my divergence from the majority stems from the remainder of its analysis. Initially, the majority determines the General Assembly did not, by enactment of Section 519, intend to preclude all local regulation in the field of nutrient management, but, rather, intended to prohibit such local regulation only if it "is more stringent than, inconsistent with, or in conflict with" the NMA or its regulations. Majority Opinion at 247–49. However, the majority then inconsistently proceeds to prohibit Montour Township's local regulation because it "clearly regulate[s] nutrient management" (which, the majority previously determined, is not a reason to preclude a local regulation) and imposes obligations "in addition to" the obligations set forth in the NMA and its regulations. Id. at 248–49. But, under the majority's construction of the preemption provisions, "additional" requirements may be adopted if they are consistent with the NMA. Accordingly, an ordinance's imposition of obligations "in addition to" those described within the NMA is not one of the delineated, express preemptive criteria contained in Section 519 ; neither is it, therefore, a valid basis for preemption. Furthermore, it is difficult to imagine the import of a local regulation that does not impose some "additional" local obligation, within any statutory framework.
Moreover, it does not necessarily follow, as the majority reasons, that the Ordinance's adverse impact requirement is in conflict with the NMA simply by nature of being "additional" to the minimum standards for manure storage facilities described in Section 83.351 of the NMA regulations. See id. at 248–49, citing 25 Pa. Code § 83.351(a) ("The minimum standards contained in this section apply to new manure storage facilities and the expansion of existing manure storage facilities, as part of a plan developed for an [Nutrient Management Plan (NMP) ] operation."). Notably, because Section 83.351 applies only to NMP operations, it does not apply to non-NMP, lower-intensity agricultural operations, such as Applicant's. Thus, absent local regulation, Applicant's 4,800 swine facility operates without even minimum standards for its manure storage. As noted by the Commonwealth Court, where there are no applicable state-level standards for manure storage, there can be no conflict with additional obligations imposed by local manure storage regulation. See Berner , 176 A.3d at 1078-79. This circumstance, however, underscores the wider problem posed by broadly applying Section 519's preemption criteria: where the NMA and its regulations contain no provisions regarding a type of farm, no ordinance would be in conflict with the NMA (and thus is not preempted), but also, any plausible ordinance at all would be more stringent by requiring more than nothing (and thus is preempted). In my view, this problem is a complex one, and to avoid potentially unduly severe restrictions on local regulation, the Section 519 preemption analysis requires more than a superficial determination that requirements additional to those imposed by the NMA regulations are preempted.
As previously noted, the NMA does not preempt the entire field of nutrient management, see Majority Opinion at 247–49 ; thus, a conflict preemption analysis is warranted. "[C]onflict preemption require[s] an analysis of whether preemption is implied in or implicit from the text of the whole statute, which may or may not include an express preemption clause." Hoffman Mining , 32 A.3d at 594, citing Cellucci v. Gen. Motors Corp. , 550 Pa. 407, 706 A.2d 806, 809 (1998).
Hoffman Mining is instructive regarding the long-standing principles, parameters, and wealth of authority supporting a conflict preemption analysis. "Under the doctrine of conflict preemption, a local ordinance that irreconcilably conflicts with a state statute is invalid." Id. at 602 (emphasis added). The analysis requires a determination not only that a conflict exists, but whether such conflict is irreconcilable. See id. at 603, quoting City Council of the City of Bethlehem v. Marcincin , 512 Pa. 1, 515 A.2d 1320, 1326 (1986) ("Where an ordinance conflicts with a statute, the will of the municipality as expressed through an ordinance will be respected unless the conflict between the statute and the ordinance is irreconcilable. ") (emphasis added). Under this assessment, a conflict is irreconcilable, and thus the local regulation is invalid, if either of two conditions exist: (1) if simultaneous compliance with both the local ordinance and the state statute is impossible, i.e. , if an actor is placed in a position of having to decide which enactment to follow, or, (2) if the local ordinance "stands ‘as an obstacle to the execution of the full purposes and objectives’ of a statutory enactment of the General Assembly." Id. at 594-95, 602-03, citing Council 13, Am. Fed'n of State, Cty. & Mun. Employees, AFL-CIO ex rel. Fillman v. Rendell , 604 Pa. 352, 986 A.2d 63, 81-82 (2009) (irreconcilable conflict existed between federal law and Pennsylvania Constitution as former required timely payment of wages to state employees but latter barred expenditures from state treasury during budget impasse), Marcincin , 515 A.2d at 1323, 1326 (ordinance limiting mayor to two consecutive terms not irreconcilable with a statute providing mayor shall be eligible for reelection), and Fross v. Cty. of Allegheny , 610 Pa. 421, 20 A.3d 1193, 1203-1207 (2011) (ordinance restricting where convicted sex offenders could reside was impediment to objectives of Sentencing and Parole Codes setting forth policy of rehabilitation, reintegration, and diversion from prison of offenders based on individually-tailored assessments); quoting Fross at 1203 n.12. Additionally, the Hoffman Mining Court acknowledged local authorities' responsibility to enact zoning ordinances for the "health, safety or general welfare of the community, giving ‘consideration to the character of the municipality, the needs of the citizens and the suitabilities and special nature of particular parts of the municipality,’ " id. at 603, 605, quoting 53 P.S. § 10603(a), and observed "the General Assembly must clearly evidence its intent to preempt.... [s]uch clarity is mandated because of the severity of the consequences of a determination of preemption[,]" that is, the complete preclusion of local legislation in that area. Id. at 593 (emphasis added).
With regard to the matter sub judice , the General Assembly has not clearly established what it intended to preempt by enacting Section 519. Further, the consequence of preempting the Ordinance's adverse impact requirement, and any local regulations enacting additional manure storage requirements affecting non-NMP operations, is considerable: in the absence of state law to accomplish the task, municipalities are without recourse to mitigate anticipated local health and safety impacts of manure storage operations on the lands immediately surrounding approximately 91 percent of the Commonwealth's animal-raising farms.
I note the Clean Streams Law, 35 P.S. §§ 691.1 -691.1001, does subject lower-intensity agricultural operations to some regulation with regard to manure pollution control, for which violations a farm "may" be required to develop and implement an NMP. 3 Pa.C.S. § 506(j). However, the extent to which the Clean Streams Law regulates Applicant's manure management activities appears, based on this record, limited in two respects. First, though he must develop and keep on file a Manure Management Plan, such a plan is not a document reviewed or approved by any authority, but a workbook document which can be prepared by the farmer or by a person certified to write such plans. Berner , 176 A.3d at 1078 (quoting testimony of state-certified nutrient management specialist Todd Rush, who prepared Applicant's Manure Management Plan). Applicant does not suggest his Manure Management Plan in any way provides assurances against adverse impacts to his surrounding properties. Id. at 1072. Second, on review of the Clean Streams Law regulation Applicant asserts governs his farm, it is questionable whether he is in fact subject to any of its enforcement provisions, which apply to illegal pollutant discharges by an operation "that meets the definition of ... [a concentrated animal feeding operation (CAFO).]" See 25 Pa. Code § 91.36(c)(2). It is undisputed Applicant's farm does not meet the definition of a CAFO. Berner , 176 A.3d at 1079 ("[Applicant] is not a CAO or a CAFO.").
In its brief supporting Applicant, the Commonwealth relates, "[o]f the 59,000 farms in the Commonwealth, approximately 23,000 raise animals. The vast majority of those farms — approximately 91% — are like [Applicant's], too small to necessitate a nutrient management plan under the NMA." Commonwealth's Amicus Curiae Brief at 17.
Turning to application of the principles of conflict preemption, the first inquiry is whether Applicant's compliance with both laws is possible. As the majority observes, the NMA imposes nutrient management requirements on NMP operations only — those being CAOs, VAOs, and operations otherwise required to implement NMPs as part of a Clean Streams Law compliance plan; it imposes no requirements on non-NMP operations, but gives them the option to comply. Majority Opinion at 249, citing 3 Pa.C.S. § 506 and 25 Pa. Code §§ 83.201, 83.261. Consequently, as Applicant is a non-NMP operation, the NMA requires nothing of his farm. No conflict is apparent in this regard, as Applicant's compliance with the Ordinance will not violate the NMA.
The remaining inquiry is whether the adverse impact requirement of the zoning ordinance stands as an obstacle to the execution of the purposes of the NMA. Section 502 of the NMA, titled "Declaration of legislative purpose," provides, in pertinent part, "[t]he purposes of this chapter are as follows: [inter alia ] (1) [t]o establish criteria, nutrient management planning requirements and an implementation schedule for the application of nutrient management measures on certain agricultural operations which generate or utilize animal manure." 3 Pa.C.S. § 502(1) (emphasis added). As explained above, those "certain agricultural operations" regulated by the chapter include, expressly and only, NMP operations. Accordingly, local regulation impacting non-NMP operations presents no obstacle to the execution of the purposes of the NMA as articulated by the General Assembly.
The additional four purposes enumerated in NMA Section 502 have no bearing on the circumstances of this case. See 3 Pa.C.S. § 502(2) -(5).
Furthermore, although, as noted by the majority, the NMA's inclusion of voluntary provisions and financial assistance for lower-intensity operations to develop NMPs may reflect a legislative purpose to spare smaller farms from the onerous requirements of implementing an NMP, see Majority Opinion at 249–50, the NMA's silence with regard to non-NMP operations does not reflect a legislative intent to spare smaller farms from all nutrient management regulation. In my view, the Ordinance's adverse impact requirement does not pose an obstacle to this purpose. As a prerequisite to receiving a special exception for Applicant's intended hog-raising use, the contested portion of the Ordinance requires Applicant to provide "legally binding assurances with performance guarantees" demonstrating the operation's manure and wastewater management facilities "will be conducted without adverse impact upon adjacent properties." Id. at 253; Montour Township, General Codes, Ch. 27 (Zoning), § 402(1)(E). Applicant has made no attempt to submit such assurances, and, consequently, has not demonstrated the Ordinance's adverse impact requirement imposes obligations as burdensome as NMP implementation. Notably, the Commonwealth Court suggests the adverse impact requirement would be met by simply providing the performance criteria or warranty information from Applicant's manure tank and equipment suppliers, and any proposed construction or operations contracts and workmanship warranties. Berner , 176 A.3d at 1072-73. These minimal requirements suggested by the Commonwealth Court for compliance with the Ordinance appear to be much less burdensome than the NMP requirements imposed by the NMA. Thus, based on the record, or lack thereof, before the Court, I disagree with the majority's elevation of the Ordinance's requirements to "standards more burdensome" than NMP requirements. See Majority Opinion at 249–50, 250 n.17.
For the foregoing reasons, I discern no irreconcilable conflict between the Ordinance's adverse impact requirement and the NMA. Thus, I would conclude the NMA does not preempt Montour Township's zoning ordinance.