Introduction: On August 10, 2004, the Rendell Administration unveiled a new initiative – entitled “ACRE” (Agriculture, Communities, and Rural Environment). Part of that new initiative is a proposal to create a Board composed of political appointees that would have the power to overturn local laws adopted by rural communities. The Board would be composed of the Dean of Penn State’s School of Agricultural Sciences, the Secretaries of Agriculture, DEP, and the Department of Community and Economic Development (DCED), and a member appointed by the Governor. See “Rendell Administration Unveils ‘ACRE’ Initiative” (Press Release, August 10, 2004).

Agribusiness and sludge corporations, instead of suing Township governments in court, could challenge local Ordinances in front of the political board. The Board will have the power to issue administrative orders stopping Townships from enforcing Ordinances. Decisions by the Board are appealable to the Commonwealth Court, which will inevitably rely on the “expert” opinions rendered by the Board in making their own ruling. No appeal as of right would be allowed to the Pennsylvania Supreme Court.

Ordinances at Risk: The following types of Ordinances would be at risk from challenges filed by agribusiness and sludge corporations with the Board. A challenge could result in an order issuing from the State Board preventing the Township from enforcing an Ordinance.

• Zoning Ordinances that provide for special uses, variances, or special exceptions for concentrated animal feeding operations (CAFO’s), other factory farms, or the land application of sewage sludge;
• Subdivision and Land-Use Ordinances that regulate and control the siting and operation of concentrated animal feeding operations (CAFO’s), other factory farms, or the land application of sewage sludge;
• Farmland Preservation Ordinances that interfere with efforts to site and operate factory farms and the land application of sewage sludge;
• Odor and Water Withdrawal Protection Ordinances that regulate and control the siting and operation of factory farms;
• Sludge Ordinances that regulate or control the land application of sewage sludge;
• Factory Farm Ordinances that regulate or control the siting and/or operation of factory farms;
• Factory Farm Ordinances that regulate or control the involvement of agribusiness corporations in the ownership and operation of factory farms;
• Moratorium Ordinances that seek to place temporary moratoria on the issuance of municipal building permits to factory farm facilities;
• Any Ordinance that collaterally regulates the land application of sludge, factory farms, or any agricultural uses of land.

Background: Beginning in 2001, legislators supported by agribusiness and sludge corporations have attempted to strip away local control asserted by municipal governments over the land application of sludge and factory farms. A unique statewide coalition of farm organizations, four hundred Township governments, environmental organizations, and organized labor groups, has successfully defeated repeated efforts to eliminate local control. In 2003, agribusiness and sludge legislators succeeded in amending a popular law dealing with child sexual molesters (on the last day of the legislative session) with language preempting Township governments from adopting (and enforcing) Ordinances dealing with factory farms and land applied sludge. That Bill (House Bill 1222) was vetoed by Governor Ed Rendell, who professed his willingness to sign away local control, but only if state regulation of factory farms and land applied sludge were made more stringent.

The Pennsylvania legislature has a track record of stripping away local control.

At the end of 2000, the Pennsylvania legislature passed Bills stripping local zoning control over mineral extraction and timber corporations. See Acts 67 and 68 of 2000. Those amendments enable those corporations to override zoning Ordinances at the Township level. The recent gambling Bill adopted by the legislature also overrides zoning Ordinances for the siting of gambling facilities.

Why the Proposal to Establish the Board Must be Defeated:

• It gives a political Board the powers of a Court, and enables that political Board to trump the rights of rural communities to adopt laws regulating and controlling factory farms and the land application of sludge;

• It makes it free for agribusiness and sludge corporations to challenge local laws adopted by rural communities, thus eliminating all financial risk for those corporations to challenge Township laws. In the lawsuit brought in 2001 in the Fulton County Court of Common Pleas - seeking to overturn factory farm Ordinances passed by a rural community - the Farm Bureau and PennAg Industries paid the legal Bill for farmers to sue the Township. It is common practice for those factory farm trade associations to foot the Bill to force factory farms and sludge into unwilling rural communities;

• The composition of the Board – political appointees - guarantees that the Board will overturn local Ordinances and gut local control. Penn State’s School of Agricultural Sciences has long been a vocal supporter of corporate factory farms and land applied sludge. The Secretary of the Department of Agriculture is an advocate for the Farm Bureau and other agribusiness interests and worked to support last session’s House Bill 1222 (stripping local control over factory farms), the Secretary of the DEP has publicly declared that only the DEP, and not local governments, should have the authority to regulate and control factory farms and sludge, and the Secretary of DCED will vote for any corporate economic development. Only three votes on the Board is necessary to overturn a local Ordinance;

• Appeals from the Board will be limited. Inevitably, the judges sitting on the Commonwealth Court will defer to the “experts” sitting on the Board, and will review the Board’s decision less stringently than a challenge heard directly by a court. That process guarantees that rural communities will be at a considerable disadvantage in the appeal process. Rural communities will have no right of appeal to the Pennsylvania Supreme Court;

• Questions of law will be presented to the Board, which will be composed of political appointees who are not lawyers or judges. In that vein, the Board will deprive rural communities of a full hearing in a court of law;

• Once established, the Board will continue in perpetuity, with local governments’ ability to adopt Ordinances placed at the whim of every new administration and new political appointees;

• Every decision issued by the Board which is obeyed by rural communities vindicates the State’s trashing of democratically adopted local laws that promote and support sustainable communities. It thus establishes an anti-democratic vehicle that can be used by sludge and agribusiness corporations to override local democracy.

The “Big” Picture – The establishment of this Board is nothing less than the State being used by agribusiness and sludge corporations to eliminate those “pesky” Townships and rural communities who continue to believe in local, democratic control over issues affecting their lives. For years, amendments to the “Right to Farm” law, the Nutrient Management Act (NMA), and other laws, have subordinated the rights of rural communities to the “rights” of corporations. With this proposal, those corporations seek to eliminate the cost and time of pursuing legal actions in Pennsylvania Courts, and instead seek to place rural communities at the mercy of those corporations by establishing a political board that can overturn local Ordinances at will. It is a continued and classic example of the few benefiting at the expense of the many.

As such, this is not an “environmental” issue, but a democratic one. It is about rural communities and Townships being able to establish a sustainable vision for themselves. It is about rural communities supporting sustainable agriculture and the ability of family farmers to make a living in a State-enforced, corporate-dominated marketplace. It is about freedom and rights, and asking the question of “by what authority” does the State seek to confer privileges, rights, and powers onto agribusiness and sludge corporations – and the few people that run them – to enable them to override local democratic decisionmaking?

First, contact your State Representative and your State Senator, and urge them to vote “no” to creating this political Board under the ACRE plan.

Second, contact other members of your Township, other Townships in your County, and your County Association of Townships, and urge them to contact their State Representative and State Senator, urging them to vote “no” to creating this political Board under the ACRE plan. To find a contact person and number for your County Association of Townships, go to http://www.psats.org/county_officers.html.

Third, because the PSATS’ governing Board has actually supported legislation like this in the past, contact PSATS directly and demand that they oppose the creation of this Board.

Fourth, contact the Governor, and urge him to pull the proposal from consideration in the House and the Senate.

Governor Ed Rendell –	(717) 787-2500
	(717) 772-8284 (f)
http://sites.state.pa.us/PA_Exec/Governor/govmail.html

About this Action Alert: This Action Alert has been sent to the Township by the Quality of Life and Local Control Caucus of Township Supervisors, a project of the Community Environmental Legal Defense Fund, Inc. The Quality of Life and Local Control Caucus of Township Supervisors consists of Township governments in nine Counties across Pennsylvania focused on protecting local control and rural quality of life. The Caucus is an independent organization and is not affiliated or recognized by the Pennsylvania State Association of Township Supervisors (PSATS).