                              [J-7-2019] [MO: Baer, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


    RUSSELL BERNER AND DONNA                   :   No. 39 MAP 2018
    BERNER, KENDALL DOBBINS, NATHAN            :
    ROBERTS, ROBERTS REALTY, LLC,              :   Appeal from the Order of the
    ROBERT D. CLARK AND ROBERT W.              :   Commonwealth Court at No. 448 CD
    WEBBER                                     :   2017 dated January 4, 2018,
                                               :   Reversing the Order of the Columbia
                                               :   County Court of Common Pleas, Civil
               v.                              :   Division, at No. 2014-CV-684 dated
                                               :   March 7, 2017
                                               :
    MONTOUR TOWNSHIP ZONING                    :   ARGUED: March 5, 2019
    HEARING BOARD AND SCOTT                    :
    SPONENBERG                                 :
                                               :
                                               :
    APPEAL OF: SCOTT SPONENBERG                :


                                 DISSENTING OPINION


JUSTICE DOUGHERTY                                       DECIDED: September 26, 2019
        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,1 and, paradoxically,


1As 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
also immune from local regulation regarding the impacts of the farm’s manure

management activities on surrounding properties. See Majority Opinion at 18. 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., 32 A.3d 587, 595 (Pa. 2011), quoting Mars

Emergency Med. Servs., Inc. v. Twp. of Adams, Cambria Cty., 740 A.2d 193, 195 (Pa.

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 15. 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



agricultural operation (VAO), or otherwise required to implement a nutrient management
plan (NMP).


                               [J-7-2019] [MO: Baer, J.] - 2
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.”).

       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 13-14, 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




                                 [J-7-2019] [MO: Baer, J.] - 3
General Assembly did not intend to preclude all local regulation in the field of nutrient

management. See Majority Opinion at 14-15. 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).2 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.

         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 14-15. 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 15. But, under


2   Subsection 519(c) is not implicated or addressed in this case. See 3 Pa.C.S. §519(c).


                                [J-7-2019] [MO: Baer, J.] - 4
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 15, 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




                               [J-7-2019] [MO: Baer, J.] - 5
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 14-15; 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.,

706 A.2d 806, 809 (Pa. 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, 515 A.2d 1320, 1326 (Pa. 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, 986 A.2d 63, 81-82 (Pa. 2009) (irreconcilable conflict existed

between federal law and Pennsylvania Constitution as former required timely payment of




                                [J-7-2019] [MO: Baer, J.] - 6
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, 20 A.3d 1193, 1203-1207 (Pa. 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,3


3I 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



                                [J-7-2019] [MO: Baer, J.] - 7
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.4

       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 16, 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,

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.”).
4In 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.



                               [J-7-2019] [MO: Baer, J.] - 8
“[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.”5 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.

       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 16-17, 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 5; 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


5 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).


                                 [J-7-2019] [MO: Baer, J.] - 9
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 17, 18 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.




                              [J-7-2019] [MO: Baer, J.] - 10
