Summary of a Recent
Judicial Development in
Urbanization and Agriculture

Attorney General's Motion for Summary Judgment in Corporate
Land Application of Manure Case Is Denied

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Pennsylvania, ex. rel. Corbett v. East Brunswick Township, 956 A.2d 1100, 2008 WL 4299620 (Pa. Commw. Ct. 2008), the Commonwealth Court of Pennsylvania denied a motion for summary judgment by the Pennsylvania Attorney General (AG) and overruled East Brunswick Township's preliminary objections. The contested township ordinance allowed individuals to apply sewage sludge after obtaining a permit, but denied the same privilege to corporations. The court denied the AG's motion for summary judgment because it was unclear whether the application of sewage sludge to land was a normal agricultural operation under the protection of Act 38, Chapter Three of the Pennsylvania Agriculture Code (Act 38).

Background

On December 6, 2006, the township enacted the challenged ordinance to regulate the application of sewage sludge to land. Id. at *2. The ordinance prohibited corporations from using sewage sludge to fertilize their land, but individuals, upon obtaining a permit and complying with the terms of the ordinance, were permitted to do so. Id. J.C. Hill Tree Farms, Inc. (Hill Farms), a corporation, requested the AG to review the ordinance and determine whether the ordinance violated Act 38. Id. at *3. The AG conducted the review and determined that the ordinance was unauthorized for three reasons: (1) the township lacked the authority to regulate sewage sludge in the manner as outlined by the instant ordinance; (3) the township lacked the authority to strip a corporation of rights that had been expressly conferred by statute and charter; and (3) the ordinance was preempted by environmental protection statutes that were intended to occupy the entire field of regulation of the use and application of sewage and animal manure as land fertilizer. Id. at *3-4. In response to the findings, the AG brought the instant action to challenge the ordinance. Id.

Arguments

Pennsylvania's AG sought to invalidate the East Brunswick Township Sewage Sludge Ordinance, alleging that it was inconsistent with the Solid Waste Management Act (SWMA) and the Nutrient Management Act (NMA), which established uniform statewide standards for the regulation of the application of sewage sludge and animal manure to land. Id. at *1. Specifically, the AG contended that the township's ordinance violated Act 38, which prohibited the enactment of unauthorized local ordinances that interfered with normal agricultural operations. Id. Additionally, the AG filed a motion for summary judgment because he believed the ordinance was invalid on its face and as a matter of law. Id. at *4.

The township filed preliminary objections seeking a dismissal of the petition for review because it asserted that Act 38 was unconstitutional, the AG lacked standing, and Act 38 expressly saved the ordinance from being found unauthorized. Id. at *5-6. The township also argued that Act 38 instituted bad public policy and was unconstitutional because it infringed on the township's right to protect the health, welfare, and safety of its citizens against the hazards of land application of manure. Id. at *11-13.

Analysis and Holdings

Although the township argued that Act 38 was unconstitutional, the court disagreed. Id. at *15-20. In order for Act 38 to be deemed unconstitutional, the court explained that it must be a clear, palpable, and plain violation of the Constitution. Id. at *19-20. The township failed to overcome the presumption. Id. The court also found that Act 38 did not exempt the instant ordinance from its prohibitory terms. Id. at *25.

Because the AG was acting upon a request from Hill Farms, the township argued that the AG lacked standing to challenge the ordinance under Act 38. Id. at *25-26. However, the AG had a responsibility to uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation.

See id. at *29. Therefore, the court held that the AG had standing because he was simply fulfilling his responsibilities under the law. Id.

Ultimately, the thrust of the lawsuit hinged on whether Act 38 authorized the ordinance. The AG contended that the ordinance was illegal on its face because it stripped corporations of their rights under the United States and Pennsylvania Constitutions. Id. at *34. The township responded by arguing that Act 38 only prohibited it from interfering with normal agricultural operations. Id. at *34. Because a normal agricultural operation was one performed by human beings, the township argued that the limitations imposed by Act 38 did not affect its ability to restrict the rights of corporations to land apply manure. Id. The court held that the determination of what constitutes a normal agricultural operation was evidentiary, rather than a legal determination. Id. at *40. Because it was unclear as a matter of law whether the application of sewage sludge to land was a normal agricultural operation under the protection of Act 38, the AG's motion for summary judgment was denied. Id. at *41.

The case was decided on September 23, 2008.