The Commonwealth Court has decided that several provisions of a Locust Township ordinance regulating “intensive animal agriculture” farming operations are pre-empted by state law.

The decision from an en banc panel came in response to a motion for summary judgment from the Attorney General’s Office, which filed suit against the Columbia County township and its board of supervisors claiming some provisions of the ordinance run afoul of several chapters of the state’s Agricultural Code, including the Nutrient Management Act.

At this stage in the proceedings, the court declined to strike down the entire ordinance.

Led by Judge P. Kevin Brobson, the unanimous seven-judge panel granted in part and denied in part the attorney general’s request, setting the stage for possible future litigation in a dispute the township’s attorney said could end up being cited in ongoing court battles over local municipalities’ ability to regulate natural gas drilling.

Litigation over Pennsylvania’s trove of natural gas, the Marcellus Shale, has been closely watched since several municipalities brought challenges to Act 13, which prohibits local municipalities from passing zoning ordinances aimed at banning natural gas drilling.

The ordinance in the current matter is aimed at regulating midsized farming operations the township coined as those involving “intensive animal agriculture” housing more than 150 Animal Equivalent Units (AEUs), regardless of how vast the farm is.

An AEU is 1,000 pounds of livestock, whether it takes one animal, 50 or 100 to get there.

Compared to the Act 13 lawsuit, the most relevant course of pre-emption in the current matter — Commonwealth v. Locust Township and Locust Township Board of Supervisors — was a challenge under Section 313 of ACRE (the Agricultural, Communities and Rural Environmental Act).

Section 313 of ACRE bars local governments from adopting or enforcing a local ordinance.

However, finding that both the Attorney General’s Office and the township inadequately briefed the issue, each failing to properly address what is the “threshold question in any ACRE case,” the court declined to decide on that count.

Pennsylvania case law has established that an unauthorized ordinance under ACRE is one that “‘prohibits or limits a normal agricultural operation absent authority of state law.’”

Therefore, the essential inquiry in any ACRE challenge is whether the underlying ordinance prohibits or limits a “normal agricultural operation.”

In this case, Brobson said, it came down to whether a farm with more than 150 AEUs on at least 10 contiguous acres, or that grosses at least $10,000 a year, is too large to be considered “normal.”

Pennsylvania decisional law has established that an ACRE challenge is a mixed question of fact and law, according to Brobson. And while that did not mean such a petition could not be resolved at summary judgment, Brobson opted to hear more from the parties because they did not adequately address the issue at this stage.

The office did not fail on all of its challenges before the panel.

In one victory for the Attorney General’s Office, the court decided that Sections 503(f) and (j) of the ordinance violated, and were therefore pre-empted by, the NMA when they required smaller farming operations to submit and implement “emergency response” and “nutrient management” plans when the NMA had made such voluntary.

Larger farms are classified under state law as one of two types of operations: Concentrated Animal Operations (CAOs), which have an animal density of at least two AEUs per acre of cropland, or Concentrated Animal Feeding Operations (CAFOs), which are defined as agricultural operations featuring at least 1,000 AEUs or those that have the potential to discharge to surface waters.

The township argued that because the ordinance only proposed to require the smaller farms to submit odor and nutrient management plans, and didn’t impose additional burdens on CAOs and CAFOs, the NMA did not pre-empt the ordinance.

However, because Section 506(h) of the NMA states any operation that is not a CAO “may voluntarily develop a nutrient management plan,” the panel decided the General Assembly’s intent was clear. And it came down to money.

“The General Assembly has decided that such smaller farms should not be required to do so; rather, they should be encouraged to do so voluntarily,” Brobson wrote in his 29-page opinion.

“The reason for the distinction is obvious. Both the preparation and implementation of the odor and nutrient management plans come at a cost, which the General Assembly clearly and expressly recognized.”

Because Sections 503(f) and (j), along with other parts of the ordinance, are pre-empted by the NMA, they also violated provisions in the Municipalities Planning Code.

Another section of the ordinance that violated state law required a farming operation to register itself with a local river basin commission if it used more than 10,000 gallons of water per day.

According to the panel, the requirement violated the Water Resources Planning Act, which requires operations consuming 10,000-plus gallons a day to report to the Department of Environmental Protection and has its own pre-emption provision.

Calling the ordinance’s provisions “irreconcilable” with the WRPA, the panel granted summary judgment in favor of the attorney general for that provision.

Challenges to the ordinance’s provisions under the Agricultural Area Security Law and the state’s Right-to-Farm Law both failed.

The township’s attorney, Anthony R. Sherr of Blue Bell, Pa., firm Mayers, Mennies & Sherr, said the pre-emption arguments brought by the Attorney General’s Office would render the state “a super zoning board or super land-use body.”

“I was a little disappointed from the standpoint of the townships, because [the court is] saying that because somebody can volunteer to comply with the provisions of the NMA, the court essentially held that they are not subject to local [regulation],” Sherr said.

Sherr also had predicted that ACRE cases, much like his own, would be precedent for Act 13 litigation.

Nils Frederiksen, a spokesman for the Attorney General’s Office, said the office was still reviewing the court’s decision, but noted that several issues were “clearly addressed by state law,” while others required further review.

Ben Present can be contacted at 215-557-2315 or Follow him on Twitter @BPresentTLI.

(Copies of the 29-page opinion in Commonwealth v. Locust Township and Locust Township Board of Supervisors, PICS No. 12-1335, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)