Pennsylvania's Right-to-Farm Summary

When Pennsylvania legislators passed the state’s first right-to-farm law in 1982, they justified it as a tool to conserve, protect, and develop agricultural land for agricultural production.1 Since that time, the state has lost 5 percent of its farm operations and 12 percent of its acres in farmland.2 So what does this and closely related RTF legislation do in practice?

Pennsylvania’s RTF Law at a Glance

Pennsylvania’s RTF and related laws provide no explicit protection for farmland, although they are sometimes confused as doing so.3 Like those present in the other forty-nine states, Pennsylvania’s RTF law centers on protecting certain types of operations from nuisance suits when they impact neighboring property, for example through noise or pollution. Pennsylvania’s RTF and related laws play out in three parts: the so-titled RTF Law, the Agricultural Communities and Rural Environment Act, and the Nutrient Management Act.

Pennsylvania specifically offers protection from nuisance suits for what it calls “normal agricultural operations,” which include the activities, practices, equipment, and procedures used by farmers in the production, harvesting, and preparation for market of agricultural and aquacultural crops, as well as livestock and poultry products.4 To receive RTF protections, normal agricultural operations must be at least ten contiguous acres in area or, if they are smaller, their yearly gross income must be at least $10,000. Protected agricultural commodities include the processed or manufactured product from farms.

In practice, courts have interpreted normal agricultural operations broadly. For example, courts treat the application of biosolids as a “normal agricultural operation,” affording recycling contractor Synagro Central, LLC, status as an agricultural operation and shielding it from nuisance suits.5

Conditions and Activities

Pennsylvania’s RTF law protects normal agricultural operations from nuisance lawsuits once they have been operating for at least one year.6 Even if an operation changes substantially after it has been in operation for a year, the facility can still maintain RTF protections so long as is has an approved nutrient plan. Operations also are allowed to expand or alter their physical facilities and still maintain protection from nuisance suits. However, if the physical facilities of an agricultural operation undergo an important change or alteration that impacts the underlying conditions or circumstances driving the nuisance claims, nuisance suits may be possible.7

Often, however, courts protect operations from nuisance suits, even when they change the size of the operation, because of the unique combination of legislative protections offered through the RTF statute, the Agricultural Communities and Rural Environment Act, and the Nutrient Management Act. For example, in a 1999 case, a homeowner sued a neighboring poultry operation with 122,000 hens for excessive flies, odors, excessive noise all hours of the day and night, and finding “eggshells, feathers and dead chickens on his real estate.” Even though the homeowner predated the poultry facility, the court used the RTF law to determine that the nuisance and negligence suits were time-barred, since the operation had been up and running for more than a year.8

In a 2016 case, residents sued two corporate operators alongside Bowes Farm for spreading food processing waste from a slaughterhouse proximate to their homes. On appeal, the court determined that spreading and storing waste were protected agricultural practices, even though the construction of a storage tank was a substantial change and it was not included in the nutrient management plan. Still, the court concluded that even if the agricultural operation violates federal, state, or local law, it is not necessarily “unlawful.” Rather, the important point was that an operation be in “substantial compliance” with federal, state, or local law. Even though the statutes themselves say that agricultural operations lose protection if they violate any federal, state, or local law, the ruling introduced the language of “substantial” to compliance.9

Pennsylvania’s RTF law also stipulates that normal agricultural operations will lose their protection from nuisance suits if they pollute streams or waters. However, in a 2018 case, the court granted an agricultural operation nuisance suit protection while acknowledging it had polluted water. While evidence showed increased bacteria in runoff water from a concentrated animal feeding operation with a 1.8-million-gallon storage pit for hog urine and feces, the court ruled the CAFO maintained RTF protections for three reasons. First, it had operated at least one year prior to the filing of the nuisance complaints. Second, application of manure to fields qualified as a normal agricultural activity. And third, even though the suit was filed within one year of manure being applied to fields, the facility had a nutrient management plan. The nutrient management plan, alongside the RTF law, thus protected the CAFO from nuisance suits.10

Local Governance

Pennsylvania RTF law exempts agricultural operations conducted “in accordance with normal agricultural operations” from nuisance ordinances, unless they have a direct adverse effect on public health and safety. This agricultural exemption applies even if that nuisance violates the intent of any federal, state, or local statute or government regulation.11 Municipalities are also required to “encourage the continuity, development, and viability of agricultural operations within [their] jurisdiction.”12

The state further limited local government with the passage of the Agricultural Communities and Rural Environment Act, even though the Pennsylvania State Association of Township Supervisors vocally opposed it and others charged it was “legislative/special-interest collusion.”13 The Agricultural Communities and Rural Environment Act followed a highly controversial amendment—supported by the state Farm Bureau but opposed by the Farmers Union—that sought to strip municipalities of their capacity to pass ordinances in 2002.14 While the controversial Senate Bill 1413 died in an appropriations committee, the Agricultural Communities and Rural Environment Act did not, which was strongly support by then governor Ed Rendell and the Pennsylvania Farm Bureau.15

With its later passage in 2005, the Agricultural Communities and Rural Environment Act similarly removed local government’s capacity to restrict agricultural operations based on their ownership structure or activities.16 The act applies to any existing ordinance, adoption, or construction, as well as to nutrient or odor management.17 However, local governments may have the authority to prohibit operations if the state specifically stipulates as much.18 If any ordinance is believed to be in violation of the act, an owner or operator of a normal agricultural operation may request that the attorney general review it. The secretary and the dean of the College of Agricultural Sciences at the Pennsylvania State University could be called on for expert consultation regarding the “nature of normal agricultural operations.”19 Based on their review, the attorney general could then choose to bring action against a local government.

Pennsylvania requires that local governments defer to the Nutrient Management Act when it comes to the storage, handling, or land application of animal manure. In effect, local governments cannot regulate waste and odor through any ordinances. While local government cannot provide more oversight, the state allows ordinances that are consistent with the Nutrient Management Act.20 In one case, neighbors sued operators of a swine CAFO that spread liquid manure. The court separated the agricultural operation’s culpability from its farming process. Even though manure spreading of fields happened well after the established date of the operation, the Court ruled the RTF law barred nuisance action because the operation (but not the farm process) predated the neighbors. The court stated, “Plaintiffs brought their actions against the owners and operators of the farm, not the farming process.”21 In a 2019 case, a township granted a special exception for a swine nursery barn, and objectors appealed the decision. The facility was small enough to skirt nutrient management plan requirements and thus could potentially be liable for nuisances because no plan was in place. The court held that the Nutrient Management Act preempts local regulation of agricultural operations as regards both operations with such plans and those without them. In essence, the Pennsylvania Supreme Court ruled that townships have no authority to manage waste from those activities deemed part of “normal agricultural operation.”22

Courts often use the Agricultural Communities and Rural Environment Act and the state’s RTF law to determine limitations on local government’s authority relative to agricultural operations. In a 2009 case, the court used the RTF law and the Agricultural Communities and Rural Environment Act to determine that a township did not have the authority to differentiate intensive agricultural activities from normal agricultural operations. Initially, the owners and operators of a broiler confinement filed a land use appeal challenging a township’s ordinance. The attorney general determined that parts of the ordinance violated the Agricultural Communities and Rural Environment Act and the RTF law, and the court agreed, also suggesting that the Nutrient Management Act already likely regulated such matters. The court consequently dismissed the township’s suit against the attorney general. In a separate case, a court in a 2012 appeals case used both laws to determine that a sound-emitting device used to repel deer from a tree farm did not qualify as part of a “normal agricultural operation.” Consequently, the township’s ordinance could bar the device.23

1. 1982 Pa. Laws 133 (H.B. 1823) (enacting what is now 3 Pa. Stat. § 951).
2. U.S. Department of Commerce, “Table 1. Farms, Land in Farms, and Land Use: 1982 and Earlier Census Years,” in 1982 Census of Agriculture, Volume 1: Geographic Area Series, Part 38: Pennsylvania State and County Data, Chapter 1: State Data (Washington, D.C.: U.S. Bureau of the Census, 1984), https://agcensus.library.cornell.edu/wp-content/uploads/1982-Pennsylvania-CHAPTER_1_State_Data-121-Table-01.pdf; “2021 State Agriculture Overview: Pennsylvania,” U.S. Department of Agriculture, National Agricultural Statistics Service, accessed October 21, 2022, https://www.nass.usda.gov/Quick_Stats/Ag_Overview/stateOverview.php?state=PENNSYLVANIA.
3. See Mary Klaus, “Past Farm Legislation Scorned as Piecemeal,” Harrisburg Patriot-News, September 15, 1987.
4. 3 Pa. Stat. § 952 (2021).
5. Gilbert v. Synagro Central, LLC, 131 A.3d 1 (Pa. 2015).
6. 3 Pa. Stat. § 954(a) (2021).
7. Branton v. Nicholas Meat, LLC, 159 A.3d 540 (Pa. Super. Ct. 2017).
8. Horne v. Haladay, 728 A.2d 954 (Pa. Super. Ct. 1999).
9. 3 Pa. Stat. § 954(b) (2021).
10. Burlingame v. Dagostin, 183 A.3d 462 (Pa. Super. Ct. 2018).
11. 3 Pa. Stat. § 956(b) (2021).
12. 3 Pa. Stat. § 953(a) (2021).
13. Lori Devoe, “Paupack Reviews ACRE Proposal,” Reading (Pa.) News Eagle, June 21, 2005; “Quick Deal: Without Hearings, Factory Farms Gain Advantage over Municipalities,” Harrisburg Patriot-News, July 12, 2005.
14. Sandi Brown, “Big-Ag Foes Oppose Bill,” Daily News (Lebanon, Pa.), May 13, 2002; Jim Hook, “Controversial Factory-Farm Bill Goes to House,” Public Opinion (Chambersburg, Pa.), May 1, 2002; M. Bradford Grabowski, “Farmers Split over New Regulations Bill,” Uniontown (Pa.) Herald-Standard, November 20, 2002.
15. Aileen Humphreys, “Rendell: ACRE Could Be Adopted in ’05,” Lancaster (Pa.) Intelligencer Journal, November 17, 2004.
16. 2005 Pa. Laws 38 (H.B. 1646) (enacting, in relevant part, what is now 3 Pa. Con. Stat. § 312).
17. 3 Pa. Con. Stat. § 313(a)(c)–(2021).
18. 3 Pa. Con. Stat. § 312(1)(i)–(ii) (2021).
19. 3 Pa. Con. Stat. § 314(a)–(d) (2021).
20. 3 Pa. Con. Stat. § 519(a)–(d) (2021).
21. Burlingame, 183 A.3d 462.
22. Berner v. Montour Township, 217 A.3d 238 (Pa. 2019).
23. Boswell v. Skippack Township, No. 389 M.D. 2006, 2012 WL 8670346 (Pa. Commw. Ct. June 27, 2012).