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McNees Environmental Client Alert

January 22, 2016

Pennsylvania High Court Reinforces Nuisance Claim Bar Under the Right To Farm Act

by Scott Gould and Kandice Hull

On December 21, 2015, the Pennsylvania Supreme Court decided the case Gilbert, et al. v. Synagro Central, LLC, et al., Pa Supreme Court No. 121 MAP 2014 (December 21, 2015), which interpreted a provision of the Pennsylvania Right To Farm Act (“RTFA”) that bars certain nuisance claims (§ 954(a)).  The RTFA precludes nuisance claims against agricultural operations conducting “normal agricultural operations” after one year of operation, under certain circumstances.  The Gilbert case involved application of biosolids (from human sewage) as fertilizer, but the Supreme Court’s rationale and holding go far beyond the application of biosolids and will serve to reinforce the broad protections provided under the RTFA for a wide range of agricultural operations.

In particular, the Court held that the determination of whether a practice constitutes a “normal agricultural operation” for purposes of precluding such nuisance claims depends on whether the activity is an accepted farming practice in Pennsylvania, and not whether that practice is being implemented in accordance with the law or industry standards.  It further determined that courts, and not juries, should decide what is a “normal” operation.  In the case, the Supreme Court found that spreading biosolids as fertilizer was, in fact, a normal agricultural operation, and since both the farm operation and the biosolids application commenced more than one year prior to the lawsuit, the Court found that the plaintiffs claims must be dismissed.

In its ruling, the Supreme Court made clear that the issue is whether the practice is normal, and not the particular operation.  It found a well-developed record demonstrating that biosolids have been used as fertilizer for more than 30 years.  But, perhaps more importantly, the Supreme Court reinforced the fact that the RTFA is intended to protect farms from nuisance actions, and that the definition of a “normal” practice must include new activities, practices, equipment and procedures consistent with technological development within the agricultural industry, and not just well-settled practices.  Plaintiffs had argued that the fact that application of biosolids was not expressly provided for in the definition of “normal agricultural operations” indicated an intention not to include the practice in the definition.  The Supreme Court held that enumerating specific activities would render the definition outdated as farming technology progresses, and determined that the intent of the definition was to encompass as many farming methods as possible, including those that do not yet exist.

McNees represented the farming operation and owner in the matter.  We believe that the Supreme Court’s decision helps to protect farming operations, including some “less traditional” operations like Concentrated Animal Operations, composting, and newer agricultural methods, from attack as “not normal.”  This decision reinforces the protections within the RTFA and the court’s ability to apply the nuisance bar as a matter of law without the involvement of a jury.  As a result of this case, we expect that, if a farming operation is challenged, there may be an opportunity to dismiss certain nuisance claims at the pretrial filing stage, avoiding costly and uncertain trials.  In strengthening the protections within the RTFA, the Gilbert case is a clear victory for the agricultural industry and will hopefully promote continued growth in Pennsylvania’s agricultural sector.