BRIEF OF RESPONDENTS IN OPPOSITION TO APPLICATION FOR SUMMARY RELIEF: COMMONWEALTH OF PENNSYLVANIA vs.
EAST BRUNSWICK TOWNSHIP

by Community Environmental Legal Defense Fund
November 15th, 2007

pdf file version

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                        Submitted by:
                        Thomas Alan Linzey, Esq.
                        Attorney I.D. #76069
                        Community Environmental Legal Defense Fund
                        675 Mower Road
                        Chambersburg, Pennsylvania 17201
                        (717) 709-0457
                        (717) 709-0263 (f)
                        tal@pa.net

                        Counsel for East Brunswick Township and
                The East Brunswick Township Board of
Supervisors

Submitted November 15, 2007

TABLE OF CONTENTS


INTRODUCTORY STATEMENT………………………………………………………9

COUNTER-STATEMENT OF QUESTIONS PRESENTED……………………………….10

COUNTER-STATEMENT OF THE CASE……………………………………………....11

A.    The Commercialization of Sewage Sludge………………………………………………11
B.    The Dumping Grounds of Schuylkill County……………………………………………16
C.    The Sewage Sludge Ordinance in East Brunswick Township…………………………...23
D.    The Anti-Local Government History Behind Act 38……………………………………26

SUMMARY OF ARGUMENT…………………………………………………………34

ARGUMENT………………………………………………………………………...36

I. ACT 38 VIOLATES THE COMMUNITY RIGHT TO LOCAL
SELF-GOVERNMENT………………………………………………………...37

A.    Municipalities Have a Duty to Protect The Health, Safety, and Welfare of Residents……………………………………………………………………………..38
B.    People Legislating Through Local Governments Have Banned Activity
to Protect Their Health, Safety, and General Welfare……………………………….46
C.    The Commonwealth Has Worked to Nullify the Right to Local Self-Government…47
D.    Act 38 Builds on the Doctrine of Preemption by Now Pitting the Enforcement Power of the State Directly Against Municipalities…………………………………………52
E.    This Preemption Scheme Violates the Rights of Communities to Protect Their Health, Safety, and Welfare …………………………………………………………………54

II. THE COURT LACKS JURISDICTION UNDER 3 PA.C.S. §313(C)…………………..57

III. ACTIONS UNDER ACT 38 ARE NOT PROPERLY STYLED AS PETITIONS FOR
    REVIEW……………………………………………………………………..60

IV. THE PETITION SHOULD BE DENIED BECAUSE THE RIGHT TO RELIEF IS NOT
CLEAR………………………………………………………………………64

V. CONCLUSION……………………………………………………………………68
TABLE OF AUTHORITIES

CASES

Asbury Hospital v. Cass Co., 326 U.S. 207, 214–15 (1945)…………………………………….28

Berger v. Commonwealth, 400 A.2d 905, 907 (Pa.Cmwlth. 1979)……………………………...63

Cali v. City of Philadelphia, 406 Pa. 290, 302, 177 A.2d 824, 830 (1962)……………………...51

Central Dauphin School District v. Commonwealth, 598 A.2d 1364, 1366–67
(Pa.Cmwlth. 1991)……………………………………………………………………….64

Commonwealth v. Lower Oxford Township, 915 A.2d 685 (Pa.Cmwlth. 2006)………………...64

Commonwealth v. Locust Township, 915 A.2d 738 (Pa.Cmwlth. 2007)………………………...64

Commonwealth v. Richmond Township, 917 A.2d 397 (Pa.Cmwlth. 2007)…………………….64

Commonwealth v. Stofchek, 322 Pa. 513, 519, 185 A. 840, 844 (1936)…………………………46

Commonwealth v. National Apartment Leasing, 529 A.2d 1157 (Pa.Cmwlth. 1987)…………...62

County Sanitation District No. 2 of Los Angeles County et al. v. County of Kern, et. al, FO 43095 (CA 5th Appellate District April 1, 2005)……………………………………………………….67

Daly v. Hemphill, 411 Pa. 263, 273, 191 A.2d 835, 842 (1963)…………………………………58

Dartmouth College v. Woodward, 4 Wheat. 518 (1816)………………………………………...37

Devlin v. City of Philadelphia, 580 Pa. 564, 578–79, 862 A.2d 1234, 1242 (2004)…………….52

In re District Attorney, 756 A.2d 711, 714 (Pa.Cmwlth. 2000)…………………………………51

Erdman v. Mitchell, 207 Pa. 79, 56 A. 327 (1903)………………………………………………54

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)…………………………………37

Fong Foo v. United States, 369 U.S. 141 (1962)………………………………………………...37

Hale v. Henkel, 201 U.S. 43 (1906)……………………………………………………………...37

Leese v. Belfast Township, No. 304 of 2001-C (Fulton County Common Pleas, Walker, J., 21 September 2005)…………………………………………………………………………………28

Machipongo Land and Coal Co., Inc. v. Commonwealth, 624 A.2d 742, 746 n. 5 (Pa.Cmwlth. 1993), rev’d on other grounds and remanded, 648 A.2d 767 (Pa. 1994)………………………..62

Marriott Corp. v. Board of Assessment Appeals of Montgomery County, 438 A.2d 1032, 1035 (Pa.Cmwlth. 1982)……………………………………………………………………………….51

Minneapolis & St. Louis Railroad Company v. Beckwith, 129 U.S. 26 (1889)…………………37

MSM Farms v. Spire, 927 F.2d 330, 332-34 (8th Cir. 1991), cert. denied, 502 U.S. 814 (1991).28

Nathaniel S. Thayer v. Town of Tilton, No. 2003-421 (Appeal from Belknap County) (NH November 30, 2004)……………………………………………………………………………..67

Noble v. Union River Logging R. Co, 147 U.S. 165 (1893)……………………………………..37

Omaha National Bank v. Spire, 389 N.W.2d 269, 282–83 (Neb. 1986)………………………...28

Pennock v. Lenzi, 882 A.2d 1057 (Pa.Cmwlth. 2005)…………………………………………...16

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)…………………………………………37

Pennsylvania Gamefowl Breeders Assn. v. Commonwealth, 533 A.2d 838, 840–41
(Pa.Cmwlth.1987)………………………………………………………………………..63

Philadelphia Facilities Management Corp. v. Biester, 431 A.2d 1123, 1132
(Pa.Cmwlth. 1981)……………………………………………………………………….52

Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886)……………..37

South Dakota Farm Bureau, Inc. v. Hazeltine, et al., App. No. 02-2366 (8th Cir. 2003)…….….28

Webster v. Lehndorff Geneva, 744 S.W.2d 801, 804–6 (Mo. 1988)…………………………….28


CONSTITUTIONS

PA. CONST., art. IX, § 1…………………………………………………………………………..47

PA. CONST., art. I, § 2……………………………………………………………………………47

PA. CONST., art. IX § 25………………………………………………………………………….47

PENNSYLVANIA CONSTITUTION OF 1776…………………………………………………………56

PENNSYLVANIA CONSTITUTION OF 1790…………………………………………………………49

PENNSYLVANIA CONSTITUTION OF 1838…………………………………………………………50

PENNSYLVANIA CONSTITUTION OF 1874…………………………………………………………50

PENNSYLVANIA CONSTITUTION OF 1968…………………………………………………………50


STATUTES AND COURT RULES


Act 38 of 2005………………………………………………………………………...…….passim
1 Pa.C.S. §§ 1903, 1921(b)………………………………………………………………………58
3 Pa.C.S. § 313(c)…………………………………………………………………………….57-58
3 P.S. § 911(a)……………………………………………………………………………………53

3 P.S. § 951 et seq………………………………………………………………………………..29

3 P.S. § 952 (1996, June 12, P.L. 336, No. 52, § 1)……………………………………………..29

3 P.S. § 953(a)……………………………………………………………………………………53

3 Pa.C.S. § 7120(b)………………………………………………………………………………30
27 Pa.C.S. § 3136(b)……………………………………………………………………………..30
53 P.S. § 10603(f), (h), and (i)…………………………………………………………………...30
53 P.S. § 66506…………………………………………………………………………………..38
53 P.S. § 66527…………………………………………………………………………………..38
Pa.R.A.P. 1501…………………………………………………………………………………...60
Pa.R.A.P. 1532(b)………………………………………………………………………………..60
REGULATIONS

25 Pa.Code § 271.1………………………………………………………………………………11

40 CFR § 503.5…………………………………………………………………………………..67


MISC.

Clean Air Task Force Report (http://www.catf.us/publications/reports/PAMinefill.pdf); see also http://www.catf.us/publications/?p=6)...........................................................................................21

G. Ronald Darlington et al., PENNSYLVANIA APPELLATE PRACTICE 2nd edition, Thomson West, 2003………………………………………………………………………………………………62

THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776)………………………………….37, 39

THE ENVIRONMENTAL REPORTER, http://www.greenworks.tv/radio/todaystory/20020416.htm (a partnership of GreenWorks.tv and WHYY Radio)………………………………………………22

Environmental Working Group, Farm Subsidy Database, Payment Concentration, <http://farm.ewg.org/farm/progdetail.php?fips=00000&progcode=total&page=conc> (accessed 17 October 2007)………………………………………………………………………………...27

Fed. Gazette, 18 Mar. 1789 (reprinted in Matthew J. Herrington, Popular Sovereignty in Pennsylvania 1776–1791, 67 TEMP. L. REV. 575 (1994))……………………………………….46

Gormley, Ken., et al., THE PENNSYLVANIA CONSTITUTION (2004)…………………………passim

Lawrence Hajna, Dredging Dilemma: Pa. Coal Country Wary of River Spoils, COURIER-POST ONLINE (January 6, 2006)………………………………………………………………………..19

Herrington, Popular Sovereignty in America 1776-1791, 67 TEMP. L. REV. 575, 585–86
(1994)……………………………………………………………………………………44

2003, December 18, Legislative Journal – House, p. 2500, 2513……………………………….15

2003, December 18, Legislative Journal—House, p. 2507……………………………………...32

2005, June 29, Legislative Journal—House, pp. 1582–1604……………………………………33
2005, June 30, Legislative Journal—House, p. 1669……………………………………………33
2005, June 30, Legislative Journal—House, p. 1670……………………………………………33
P.D. Luther, HISTORY OF SCHUYLKILL COUNTY, PA at 44 (1881)…………………………...16-17
Tom Mailer, Pennsylvania Residents Fight Sewage Sludge Dumping, THE MILITANT, (April 29, 2002)……………………………………………………………………………………………..23

Kathleen A. McGinty, Secretary, Pennsylvania Department of Environmental Protection, TESTIMONY TO THE HOUSE SUBCOMITTEE ON CONSERVATION, CREDIT, ENERGY, AND RESEARCH OF THE COMMITTEE ON AGRICULTURE (March 7, 2007)…………………………………………18

National Research Council, BIOSOLIDS APPLIED TO LAND: ADVANCING STANDARDS AND PRACTICES, July 2002………………………………………………………………………...14-15

Norberg-Hodge, Helena, and Steven Gorelick, Bringing the Food Economy Home, INTERNATIONAL SOCIETY FOR ECOLOGY AND CULTURE, September 2002………………………27

Laura Orlando, The Sludge Scam: Should Sewage Sludge Fertilize Your Vegetables, DOLLARS AND SENSE, May/June 1997…………………………………………………………………..12-14

Grace Palladino, ANOTHER CIVIL WAR - LABOR, CAPITAL, AND THE STATE IN THE ANTHRACITE REGIONS OF PENNSYLVANIA, 1840-1868 at 172-173 (2006)……………………………………..18

Akweli Parker, Pennsylvania-Based Waste Firm Proposes Using Coal By-Product for Energy, THE PHILADELPHIA INQUIRER (April 11, 2001)………………………………………………….18

Jenna Portnoy, Smelling Faults, PHILADELPHIA CITYPAPER (March 16, 2006) (http://www.citypaper.net/articles/2006-03-16/cb.shtml?print=1)................................................22

Report Criticizes Dumping of Fly Ash in Mines, PITTSBURGH POST-GAZETTE NEWS ON-LINE (September 19, 2007) (http://www.postgazette.com/pg/07262/818648-85.stm)...........................19

Reuters News, Powerhouse Big Farms Dominate U.S. Ag Output, June 3, 2004……………….27

J. Stuart Richards, DEATH IN THE MINES: DISASTERS AND RESCUES IN THE ANTHRACITE COAL FIELDS OF PENNSYLVANIA (2007)………………………………………………………………..18

SENATE JOURNAL at 633 (July 4, 2006)……………………………………………………...11, 44

Donald R. Serfass, Dumping Ground Concerns Specter: Senator at McAdoo Superfund Site, TIMES-NEWS ONLINE (October 7, 2006)…………………………………………………………23

Sue Sturgis, Local Polycythemia Rate Gets Feds’ Attention: Blood Cancer Linked to Benzene, Radiation (July 30, 2006)………………………………………………………………………..21

USDA Economic Research Service, Understanding Rural America: Rural Change, February 1997………………………………………………………………………………………………27

Tom Venesky, Sludge May be Used to Fill Old Coal Mines, THE TIMES TRIBUNE.COM (September 14, 2003)…………………………………………………………………………….20

James Wilson, Pennsylvania Ratifying Convention, 4 Dec. 1787 (reprinted in Philip B. Kurland, THE FOUNDERS’ CONSTITUTION VOLUME ONE at 62)……………………………………………45

Wood, Gordon S., THE CREATION OF THE AMERICAN REPUBLIC 1776–1787 at 362. (1972)……44


Introductory Statement
    On 3 October 2007, the Office of the Attorney General filed a “Petition for Review” against East Brunswick Township and the East Brunswick Township Board of Supervisors. At the same time, the Attorney General filed an “Application for Summary Relief” and supporting brief pursuant to Pa.R.A.P. 1532(b). This Court issued a scheduling order directing respondents to file a brief in response to the “Application for Summary Relief” by 15 November 2007. Respondents submit this brief in compliance with that Order.

Counter-Statement of the Questions Involved
    I.    Does Act 38 of 2005, which is a necessary component of the Attorney General’s power to file this petition and of this Court’s jurisdiction to decide this case, violate the United States and Pennsylvania Constitutions by infringing on the inherent, inalienable right of local self-government of the people of East Brunswick Township? (suggested answer: yes)

    II.    Even if Act 38 is constitutional, does the Court lack subject matter jurisdiction over this matter by operation of 3 Pa.C.S. § 313(c)? (suggested answer: yes)

III.    Should the Court deny the “Application for Summary Relief” and exercise its authority under Pa.R.A.P. 1504 to reclassify the “Petition for Review” as a “Complaint” because Chapter 15 of the Pennsylvania Rules of Appellate Procedure is not the correct procedural mechanism for handling litigation brought under Act 38 of 2005? (suggested answer: yes)

    IV.    Should the Court deny the “Application for Summary Relief” on the ground that there are many disputed questions of law that, far from being clearly settled in the Attorney General’s favor, are matters of first impression under Act 38 of 2005? (suggested answer: yes)

Counter-Statement of the Case
    Pennsylvanians has been active for a decade in a burgeoning, nationwide local control movement  to exercise and defend the inalienable right to local self-government. The people of East Brunswick Township merged with other communities asserting that right to self-government in December 2006 when they enacted an Ordinance to ban the land application of sewage sludge by corporations and to regulate land application of sludge by people within their Township. In contrast to that local democracy movement, Act 38 of 2005 was the result of a six-year effort by the General Assembly to overturn democratically enacted local laws that “interfered” with agribusiness corporate efforts to site factory farms and land apply sewage sludge within rural municipalities. Given that background, this Court cannot make an informed and fair decision here without a full examination of this dispute’s historical contexts, the circumstances which provoked the people of East Brunswick to seek a remedy against sludging in their Township, and the implications of this case for the future of democratic local control in Pennsylvania.

    A.    The Commercialization of Sewage Sludge
    Sewage sludge is a product of the treatment of residential, commercial, and industrial sewage waste in sewage wastewater treatment plants. 25 Pa.Code § 271.1. The purpose of that treatment is to remove contaminants from water (to federal standards at least) for its release back into the environment. The better the process of treating the water to be released, the more toxic the product which is left behind, sewage sludge. Because of the residential, commercial, and industrial source of sewage, the resulting sludge contains chemicals, bacteria, fungi, and heavy metals.
    American sewage sludge used to be dumped into the ocean. Scientists discovered that the practice was killing marine life. This led Congress to ban ocean dumping in 1988, forcing the country to find an alternative method for disposing of sewage sludge. The result was the sludge industry’s creation of the so-called “beneficial use” program administered by the U.S. Environmental Protection Agency under Part 503 of Title 40 of the Code of Federal Regulations. Part 503, which is administered in Pennsylvania by the Department of Environmental Protection,  “permits” sewage sludge to be land applied as fertilizer on farms and mine reclamation sites, thus “legalizing” the practice of land applying sewage sludge. Following the adoption of those regulations, a marketing effort led to the creation of the term “biosolids” as a euphemism for “sewage sludge.”
    Yet sludge by any other name smells just as bad and is just as harmful to human health. How harmful nobody knows for any particular sludge load, as the EPA regulations call for industry self-monitoring of only pathogens and ten inorganic chemicals. As Boston University Professor Laura Orlando has said, “Dioxins and most of the 700 to 1,000 new chemicals added annually to the 60,000 chemicals currently used in US industry are not regulated” in sludge.
In addition, the levels set for the regulated contents of sludge are arbitrary. In the wake of the ban on ocean dumping and the plan to increase land application, “[a]cceptable cumulative load limits (accumulated amounts) increased for every heavy metal regulated by the 503’s: lead increased from 110 to 265 pounds per acre, zinc jumped from 150 to 2,469 pounds per acre, arsenic levels were raised threefold, chromium ballooned from 467 to 2,645 pounds per acre.”  EPA microbiologist Dr. David Lewis, whom the agency eventually fired, called the experiments used to justify the new standards “sludge magic.”
    The health hazards posed by sewage sludge are not a matter of fringe speculation. According to Cornell University and the American Society of Civil Engineers, on any given day a load of sewage sludge can contain the following: polychlorinated biphenyls (PCBs); chlorinated pesticides such as DDT, aldrin, endrin, chlordane, and 2,4,-D; heavy metals from wood preservatives, pesticides, metal plating, and batteries; bacteria; viruses; fungi; chlorinated compounds; flame retardants (such as asbestos); petroleum products; industrial solvents; nitrogen; phosphorus; potassium; and dioxin.  In the 1990s, Cornell University’s extension service recommended that farmers “limit the total cumulative load of metals in soil to no more than 1/10 the cumulative loading limits set under federal 503 regulations.”  According to Orlando, “On average, the 503 regulations for cumulative loading of heavy metals are eight times higher than those set in Denmark, Canada, the European Economic Community, France, and the Netherlands.”
    Even if the EPA’s regulatory scheme was adequate in theory, the agency itself admits that it has been a failure in practice. In April 2002, the Inspector General of the EPA issued a report baldly declaring that the “EPA cannot assure the public that current land application practices are protective of human health and the environment.”  Among the Inspector General’s concerns were the following: “failure to properly manage sludge may have adverse effects on human health and the environment”; “EPA does not have an effective program of ensuring compliance with land application requirements”; and state officials have criticized the lack of EPA oversight, staffing, and commitment toward ensuring the safety of land applied sludge.
     That same year, the National Research Council issued a report titled, “Biosolids Applied to Land: Advancing Standards and Practices.”  NRC’s use of the industry term “biosolids” signals that it was not about to question the beneficial use program in toto, and indeed, the report’s summary section on major findings begins with palliative language for industry: “The committee recognizes that land application of biosolids is a widely used, practical option for managing the large volume of sewage sludge generated at wastewater treatment plants that otherwise would largely need to be disposed of at landfills or by incineration.”  Yet even in the context of that concession, the report is alarming to members of the public with concerns that EPA’s beneficial use standards are not supported by current science and need to be expanded to cover other harmful components in sludge. The NRC worded its overarching finding as follows: “There is no documented scientific evidence that the Part 503 rule has failed to protect public health. However, additional scientific work is needed to reduce persistent uncertainty about the potential for adverse human health effects from exposure to biosolids. There have been anecdotal allegations of disease, and many scientific advances have occurred since the Part 503 rule was promulgated. To assure the public and to protect public health, there is a critical need to update the scientific basis of the rule to (1) ensure that the chemical and pathogen standards are supported by current scientific data and risk-assessment methods, (2) demonstrate effective enforcement of the Part 503 rule, and (3) validate the effectiveness of biosolids-management practices.”
    Anecdotal evidence of harms to human health from land applied sewage sludge includes the deaths of two young boys in Pennsylvania. In 1994, eleven-year-old Tony Behun from Rush Township, Centre County died from a staphylococcus infection shortly after being exposed to sewage sludge. See 2003, December 18, Legislative Journal—House pp. 2500, 2513. In 1995, seventeen-year-old Danny Pennock from Robesonia, Pennsylvania died from a staphylococcus infection shortly after being exposed to sewage sludge. Although EPA staff microbiologist Dr. Lewis concluded from Pennock’s medical records that he probably contracted his infection from exposure to sewage sludge, it took too long for his parents to make that discovery, and this Court proceeded to rule against them in their wrongful death lawsuit on the ground that the statute of limitations had expired two years after their son. See Pennock v. Lenzi, 882 A.2d 1057 (Pa.Cmwlth. 2005).

    B.    The Dumping Grounds of Schuylkill County
    Since the 1820’s, Schuylkill County has been used as a natural resource extraction colony and as a dumpsite for waste imported from other regions. Within decades of the discovery of anthracite coal in Schuylkill County, fortune-seekers targeted the area for intensive resource extraction. As explained by P.D. Luther in the classic 1881 study of Schuylkill County:
[a] few years after the inauguration of the Schuylkill coal trade when anthracite was recognized in commerce as a staple article, the Schuylkill coal region became the theatre of a wild spirit of speculation and adventure, somewhat similar to the frenzy which prevailed in the oil regions not many years since. There was a rush to Schuylkill County of a promiscuous crowd of capitalists, adventurers, and fortune hunters, who were inspired with the delusive phantom of suddenly becoming millionaires in the new El Dorado. This was the first speculative era of the Schuylkill coal trade. The mountains were scarified by pits and trial shafts sunk by enthusiastic prospectors, traces of which yet remain.

    By the middle part of the 19th century, large mining corporations had taken over what had been largely a small operator-dominated industry. It was a transition marked by conflict between independent entrepreneurs and those who established “trusts” and market combinations to centralize the ownership of, and profit from, Schuylkill mines. As Luther explained:
[a]n earnest and increasing opposition to incorporated coal companies in the Schuylkill region, which had agitated the public mind for some time, culminated in 1833 in public meetings, in communications to the press, in memorials to the Legislature, and in well sustained public and private argument and discussion. During the session of the Legislature of Pennsylvania in the winter of 1838, the coal operators, the miners and laborers at the mines, and the citizens generally of Schuylkill County were very much exercised upon the subject of incorporated coal companies. The indignation of the people was intensely wrought upon. . . because they were opposed in principle to conferring such grants. . . The voice of the coal region was heard in earnest remonstrance, but it was all of no avail.

    Workers, including many new immigrants to the County, were enticed to work in company towns for less than subsistence wages after years of regular and substantial pay-cuts. They arrived to become little better than wage slaves for the coal industry. As Wikipedia describes:
[e]vident [in Schuylkill County] are “patch towns,” small villages affiliated with a particular mine. These small towns, with populations typically less than 500, were solely owned by the mine; the resident miners were tenants, the general store was owned by the mining concern, and police were mine employees whose prominent charge was to protect the coal from theft by the residents. Though no longer company owned, many such hamlets survive.
See Wikipedia, entry on “Schuylkill County, Pennsylvania.”

    During the Civil War, conflict grew in the County as people struggled to wrest their rights from corporate railroad and coal barons backed by state and federal authority. As described by Professor Grace Palladino:
[i]n the coal regions. . . corporate lawyers and government officials creatively interpreted the law. Industrialists retained a remarkable ability to command the coercive power of the state to protect their particular economic interests. . . The system of industrial capitalism that developed in the nineteenth century generated a political and economic structure antithetical to the long-cherished notions of a republican social order. It neither produced the equitable economic rewards central to the wage earners’ concept of republicanism or the economic prosperity and political consensus essential to the republicanism envisioned by independent entrepreneurs. . . The recurring need to employ coercive state power to resolve industrial conflicts – whether through state militia, federal troops, state-chartered private police, or federal injunction – demonstrates that organized capital relied on the state to cripple working-class opposition to the revolutionary extension of corporate power.

    As related by J. Stuart Richards, mining disasters since 1870 have resulted in the loss of over “30,000 men and boys who toiled underground in the anthracite mines of Pennsylvania. The constant threat of fire, explosion, collapsed rock, and deadly gas brought miners face to face with death on a daily basis.”
    In addition to corporate centralization over labor in the minefields, Schuylkill County’s natural environment was ravaged. As described by the Philadelphia Inquirer, “like larger-than-life tombstones, the black piles of coal waste on the denuded hillsides that pock northeastern Pennsylvania mark the devastation left by decades of mining.”  As reported by the Department of Environmental Protection, there are roughly 5,100 abandoned coal mines in Pennsylvania, $500 million has been spent on reclamation projects since 1980, the state has over two billion tons of waste coal, and mining has created more than 180,000 acres of abandoned mine lands. 
    Those abandoned mines have resulted in acid mine drainage which has contaminated more than 3,000 miles of streams and associated groundwaters in Pennsylvania and “is the most extensive water-pollution problem affecting the four major river basins in Pennsylvania.”
    As described by the New Jersey Courier-Post:
[t]he hills around the sprawling borough of Tamaqua in Schuylkill County in the heart of Northeastern Pennsylvania’s anthracite belt bear the scars of more than 130 years of coal mining. Huge hills of shale, waste coal and sandstone – decades of debris torn away to get at valuable anthracite seams – flank mountain roads. Streams are virtually barren of life, polluted by acid-laced water that runs out of abandoned mines. It’s a bleak landscape.

    The recent history of Schuylkill County bears an eerie resemblance to its more distant past. Coal ash and river dredge, along with sewage sludge, are now routinely dumped into the County. As the Pittsburgh Post-Gazette recounts:
[t]he state Department of Environmental Protection has allowed coal-burning electric utility companies to dispose of ash in Pennsylvania’s old surface and deep coal mines for almost 20 years, as part of a program that is a cornerstone of the state’s waste disposal policy. A total of 120 abandoned mines – more than in any other state – have been permitted to accept the ash.

    Waste dredged from the bottom of the Delaware River has also received approval from the State’s Department of Environmental Protection for dumping into Schuylkill County.

As the Courier-Post newspaper explained
Pennsylvania Governor Ed Rendell has proposed shipping millions of cubic yards of sediments from the stalled project to deepen the Delaware River’s shipping channel to reclaim these hills, in the process hoping to ease South Jersey’s fears of being saddled with the muck. Yet he appears to have overlooked an important fact: virtually no one in coal country wants the stuff. 

One resident of the County characterized the plan in these terms:

[j]ust think, the most vile, disgusting, and contaminated filth lying in the bottom of New York and New Jersey harbors, the toxicity of the city, could find a new home right here in Northeastern Pennsylvania. That’s right. The thick, black muck that contains more than 100 heavy metals and chemicals could be dredged up and dumped into our empty mines.

Contrary to claims by the State’s Department of Environmental Protection that the disposal of ash and other waste products is not harmful to human health or the environment, investigations by the residents of the County are finding otherwise. In a recently released study, a Clean Air Task Force established in the County authored Impacts on Water Quality from Placement of Coal Combustion Waste in Pennsylvania Coal Mines, reporting the results of examining monitoring data from 15 surface coal mines in Pennsylvania that had received large volumes of coal ash. That Study reported that:
[d]espite persistent claims by the Pennsylvania Department of Environmental Protection that there is no evidence that coal ash has ever contaminated water in a coal mine in Pennsylvania, this Study finds plenty of evidence from monitoring data that ash is contaminating groundwaters and surface waters in ten of the fifteen mines with levels of lead, cadmium, arsenic, chromium, nickel, zinc, copper, and other pollutants exceeding drinking water standards and water quality standards, often by many times. This contamination is posing a threat to humans and the environment.

The director of the Pennsylvania Mine Fill Research Project at the Clean Air Task Force has stated that:
the DEP is. . . turning our mines into dumps and then stopping monitoring of the consequences. What it’s doing is playing Russian roulette with the state’s water supplies. The regulators in Pennsylvania don’t want to honestly assess this data. We don’t see the agency seriously regulating. We see it as being a booster for the co-generation industry.

The Agency for Toxic Substances and Disease Registry – a division of the federal Centers for Disease Control and Prevention – recently announced that it is gathering information on the region’s “significantly elevated incidence”of polycythemia vera, a malignant condition where a DNA mutation causes bone marrow to overproduce red blood cells. Residents of the County’s Still Creek area have reported what seem to be unusually high rates of other cancers as well as thyroid disorders – health problems that have been linked to environmental contamination.
In 2002, the Reading Anthracite Company announced plans to dump sewage sludge into the County. As The Environmental Reporter explained:
[a] plan to use sewage sludge in the reclamation of abandoned mine land in one region of Pennsylvania is faced with strong local opposition. Mahanoy Creek Watershed Association President Roseann Weinrich says just because it’s legal to apply biosolids on farm and abandoned mine lands doesn’t mean its safe. Jerry Knowles, a Schuylkill County Commissioner, said those in support of the plan have not sufficiently addressed local concerns. “I don’t know why anybody would want to move forward with a project like that when there is such strong opposition within the community,” says Knowles. “The local governments in large numbers have gone on record as opposing this project.”

As the Philadelphia CityPaper reported:

Every year, 200,000 tons of dried human waste spends some amount of time sitting in mounds off I-95’s Bartram Avenue exit, under the Platt Bridge. Now, the [Philadelphia] Water Department has a plan to outsource biosolids processing – a move that would eliminate the odors, save millions of dollars, and turn the sludge into safe compost. But what the city isn’t talking about is that most of the sludge it’s been processing for years along the busiest interstate in the country is the same stuff that some parents in rural Pennsylvania blame for killing their children. . . The city sends 60,000 tons of the Class B sludge to about 70 farms in Pennsylvania and Maryland; 20,000 tons go to coal mine reclamation, mainly in Schuylkill County; and the remaining 40,000 tons go to landfill.

Opposition to the use of the County for the dumping of sewage sludge, after the repeated historical assaults that have been the legacy of the County, has risen from residents across the County:
[i]n a series of meetings over a three-week period, residents of townships and boroughs throughout southern Schuylkill County have begun to take on one of the local millionaire coal operators over questions of health and the environment. Reading Anthracite, Gilberton Coal Company, and Waste Management Processors, Inc. (WMPI), have all applied for permission to dump sewage sludge – called biosolids by the water treatment industry – for fertilizer on thousands of acres of strip mine land.
Nine local governments in the targeted areas have passed resolutions stating their opposition to these plans, or have established ordinances that could make dumping prohibitive. WMPI is one of the John Rich family companies along with Gilberton Coal and Reading Anthracite.
New Castle Township is the most recent to take action, joining West Mahanoy, Conyngham, Mt. Carmel, and Butler townships, and the boroughs of Ashland, Mt. Carmel, Girardville and Shenandoah. These municipalities are spread throughout an area that has long been dominated by coal interests who for decades sucked out hundreds of millions of dollars of profits, leaving mountains of waste material, called culm banks, towering over the remaining towns.
Under the proposal, the water treatment authority in Philadelphia would pay WMPI $37.50 per ton of sludge accepted for dumping. The coal company says it plans to dump 60 dry tons on each acre of mine land it wants to reclaim, mixing it with the topsoil and spraying grass seed on top. A one year contract would net the Rich family $1.5 million for hauling away 40,000 tons of sludge. 

            In October of 2006, elected officials of the County pressed U.S. Senator Arlen Specter to appear in Schuylkill County to answer questions about illnesses that have spread throughout the County. As the Times-News reported:
[i]s there a connection between a former Superfund site and the high number of cases of a rare blood disorder? That question, and a related announcement, brought U.S. Sen. Arlen Specter to the McAdoo Associates Superfund site Friday afternoon. There are reportedly eight cases of the illness among residents of Ben Titus Road in Rush Township.
      “This area has been a dumping ground,” said Specter. “We understand your concerns and we share your concerns,” he said. “When I hear about cancer, I’m especially concerned,” he said, referring to his own bout with the disease.”. . . Tamaqua Borough Council member Cathy Miorelli asked Specter what he thought about communities – such as Tamaqua – working toward local control. . . Miorelli noted that sometimes legal counsel warns communities against enacting protective measures due to a fear of being sued. Specter said to move forward anyway. “If your lawyer says you can’t do it, find another lawyer. Getting sued is a lot better than getting sick.”

C.    The Sewage Sludge Ordinance in East Brunswick Township
The enactment of the “Sewage Sludge Ordinance” in East Brunswick Township can only be understood in the context of the historic treatment of Schuylkill County as a resource colony, an area that has been stripped of its resources by corporations that left behind communities stricken with poverty. Faced with the prospect of being a dumping ground for sewage sludge from Philadelphia and other communities, the people of East Brunswick Township had to decide what to do to protect their health, safety, and welfare.
To a reasonable, unbiased mind, the evidence is that sewage sludge is dangerous because the regulations set arbitrarily high load limits, are not enforced properly anyway, do not cover tens of thousands of harmful chemicals - such as dioxins and PCB’s, that are harmful to human health - and contain harmful pathogens notwithstanding regulations designed to convince the public otherwise. Despite this danger, the people of East Brunswick Township face a governmental structure that says because sludge is regulated at the federal and state levels, local governments are powerless to adopt regulations that are more stringent, even if those regulations are reasonable for protecting the health and safety of the people, which even Act 38 recognizes municipalities have a “responsibility” to do. See House Bill 1646, Session of 2005, printer’s no. 2433, p. 2, line 9).
The people of East Brunswick Township invested a great deal of time in meeting, investigating, and talking among themselves and with their elected officials – in the best spirit of engaged citizenship and the exercise of democratic self-governance. They decided – as a community – to exercise their inherent right of local self-government to protect themselves by enacting a law that would prevent corporate sludge dumping within their municipality. The “Findings and Purpose” section of the Ordinance shows that they did so mindful of the harms posed by the land application of sewage sludge, the state legal structure that enables corporations to profit from spreading sludge with minimal risk of legal responsibility, and the federal and state regulatory system for treatment and application of sewage sludge. To that end, the Ordinance declares that:
In support of enactment of this Ordinance, the Board of Supervisors of East Brunswick Township finds and declares that:

The land application of sewage sludge in East Brunswick Township poses a significant threat to the health, safety, and welfare of the citizens and environment of East Brunswick Township.

In April 2002, the Inspector General of the Environmental Protection Agency (EPA), which oversees state sewage sludge regulations, issued a report in which it concluded, “EPA cannot assure the public that current land application [of sewage sludge] practices are protective of human health and the environment.” Among the Inspector General’s concerns were the following: “failure to properly manage sludge may have adverse effects on human health and the environment”; “EPA does not have an effective program of ensuring compliance with land application requirements”; and state officials have criticized the lack of EPA oversight, staffing, and commitment toward ensuring the safety of land applied sludge.

In 1994, eleven-year-old Tony Behun from Rush Township, Centre County, Pennsylvania, died from a staph infection shortly after being exposed to sewage sludge. The following year, seventeen-year-old Daniel Pennock from Reading, Pennsylvania, died from a staph infection shortly after being exposed to sewage sludge. The U.S. Environmental Protection Agency (EPA) recognizes staph as a potential pathogenic component of sewage sludge.

In spite of these risks, East Brunswick Township has been rendered powerless by the state and federal government to prohibit the land application of sewage sludge by persons that comply with all applicable laws and regulations.

In order to protect the health, safety, and welfare of the residents of East Brunswick Township, the soil, groundwater, and surface water, the environment and its flora and fauna, and the practice of sustainable agriculture, the Township finds it necessary to ban corporations and other limited liability entities from engaging in the land application of sewage sludge. It is recognized that a small number of waste management corporations control the vast majority of sludge hauling and land application, and that corporate concentration enables those corporations to define waste management practices at the State level to the detriment of municipal communities. It is also recognized that limited liability shields prevent financial recovery (and accountability) for damages caused by business entities because limited liability insulates the persons managing the corporation from harms caused by their decisions. Finally, the Township recognizes that corporations wielding government-conferred constitutional powers against the municipal government renders the Board of Supervisors unable to guarantee to its citizens a republican form of government in the Township.

In order to protect the health, safety, and welfare of the residents of East Brunswick Township, the soil, groundwater, and surface water, the environment and its flora and fauna, and the practice of sustainable agriculture, it is necessary to test each load of sewage sludge to be applied by persons before it is land applied within the Township to determine if the level of pollutants, pathogens, or vector attractants exceed the levels allowed under applicable laws and regulations.

DEP does not possess sufficient funding or personnel to ensure that persons land applying sewage sludge in East Brunswick Township are doing so in compliance with state laws and regulations, so East Brunswick Township must have the option of enforcing those laws and regulations itself.

See Ordinance at § 3.

After reviewing all of the information and available options, the people of East Brunswick Township settled on a local law that bans corporations from engaging in the land application of sewage sludge, and that adopts and enforces the federal/state regulatory system for land application by persons.

D.    The Anti-Local Government History behind Act 38
    The General Assembly’s enactment of Act 38 did not occur in a vacuum. It was the result of a six-year effort by the agribusiness and sewage sludge-hauling industries to eliminate lawmaking authority exercised by rural municipal governments. Unbiased observers will conclude that the legislation was driven not by the independent family farmers who have anchored Pennsylvania’s rural communities over the past centuries, but by trade organizations, corporations, and contractors wholly dependent upon a handful of agribusiness and sludge corporations that have corporatized a once highly diverse and flourishing independent farm economy.
Statistics that illustrate the impact of the corporatization of agriculture are sobering. The number of farms in the United States has fallen from around 6.5 million in the 1930s to under 2 million today.  According to the 2002 Census of Agriculture, just 3% of U.S. farms generate 62% of all agricultural production in the country.  Between 1995 and 2005, 88% of the federal government’s $164.7 billion in agricultural subsidies went to just 20% of U.S. farms.  The percentage of the rural workforce employed on farms dropped by about 50% in the 1980s and 1990s.  Contrary to claims that corporatization of agriculture is in the best interest of the economy, diverse, sustainable farms create more jobs per unit of land and produce more food per unit of land than industrial farms rooted in the chemical-based science of monoculture.
As agriculture has been corporatized, rural municipal governments have begun to seek ways to prevent agribusiness and sludge corporations from formulating farm and waste management policies for communities. Those efforts, accelerated by the death of two children in Pennsylvania after they were exposed to land applied sewage sludge, led to the adoption of local laws across the State that banned corporations from engaging in farming and from engaging in the land application of sewage sludge.  The local laws were modeled on state laws from nine Midwestern States that successfully banned agribusiness corporations from engaging in farming at the state level.  Such laws have been upheld against constitutional challenge in the United States Supreme Court, which has ruled that banning certain corporations from engaging in the activity of farming was rationally related to the legitimate state interest in preventing corporate domination of agriculture. See Asbury Hospital v. Cass Co., 326 U.S. 207, 214–15 (1945); see also MSM Farms v. Spire, 927 F.2d 330, 332-34 (8th Cir. 1991), cert. denied, 502 U.S. 814 (1991); Webster v. Lehndorff Geneva, 744 S.W.2d 801, 804–6 (Mo. 1988); Omaha National Bank v. Spire, 389 N.W.2d 269, 282–83 (Neb. 1986); But see, South Dakota Farm Bureau, Inc. v. Hazeltine, et al., App. No. 02-2366 (8th Circuit 2003) (overturning South Dakota’s anti-corporate farming law on the basis of notes made by the drafting committee which evidenced a violation of the Commerce Clause). In an unreported decision in 2005, the Court of Common Pleas of Fulton County denied summary judgment to a litigant who sought to strike Belfast Township, Fulton County’s municipal ban on corporate farming. Leese v. Belfast Township, No. 304 of 2001-C (Fulton County Common Pleas, Walker, J., 21 September 2005).
    In response to the local self-government movement, agribusiness and sludge corporate interests began working with legislators from both major parties to advance an agenda that would protect their factory farm and sludge operations. The string of legislation they have crafted and enacted over the past several years is remarkable in the manner in which it has chipped away, piece-by-piece, at municipal police power to legislate for the health and safety of communities. The end result of this continuing process can only be the reduction of municipal governments to mere local road crews and parks administrators.
    The legislative onslaught began in 1996. At that time, the Right-to-Farm Law (3 P.S. § 951 et seq.), which protects “normal agricultural operations” that do not directly affect health and safety, had a definition for “normal agricultural operation” that did not include the word “equipment.” In 1996, the General Assembly amended the definition by adding the word “equipment” to the first sentence of the definition, and adding the entire second sentence of the current definition: “The term includes new activities, practices, equipment and procedures consistent with technological development within the agricultural industry.” 3 P.S. § 952 (1996, June 12, P.L. 336, No. 52, § 1). The purpose of this amendment was to exempt factory farms, also called Concentrated Animal Feeding Operations, from being regulated by local municipalities as public nuisances. Sponsors of the amendment touted that it was written to help family farmers compete in the agriculture industry, but in reality it was driven in the General Assembly by corporate agricultural interests.
    Four years later, the General Assembly amended the Municipalities Planning Code (MPC) to whittle away at municipal authority to regulate forestry, mining, and agriculture through zoning ordinances. As amended in 2000, the MPC says: (f) ... “forestry activities, including, but not limited to, timber harvesting, shall be a permitted use by right in all zoning districts in every municipality”; (h) “...Zoning ordinances may not restrict agricultural operations or changes to or expansions of agricultural operations in geographic areas where agriculture has traditionally been present unless the agricultural operation will have a direct adverse effect on the public health and safety”; (i) “Zoning ordinances shall provide for the reasonable development of minerals in each municipality.” 53 P.S. § 10603(f), (h), and (i).
    Forced by their state to allow corporate factory farms in their communities against their will, some municipalities tried to regulate water withdrawals by agribusiness corporations to protect water supplies for rural residents and for the health of their ecosystems. The General Assembly stripped this power in Act 220 of 2002: “no political subdivision shall have any power to allocate water resources or to regulate the location, amount, timing, terms or conditions of any water withdrawal by any person.” 27 Pa.C.S. § 3136(b).
    Nationwide, the local ordinance movement has included efforts to protect human health, food supplies, and biodiversity by banning genetically modified seeds and crops from their local communities. Industrial agriculture preemptively stomped this portion of the movement in Pennsylvania by passing Act 164 of 2004, which declared that “no ordinance or regulation of any political subdivision or home rule municipality may prohibit or in any way attempt to regulate any matter relating to the registration, labeling, sale, storage, transportation, distribution, notification of use or use of seeds if any of these ordinances, laws or regulations are in conflict with this chapter.” 3 Pa.C.S. § 7120(b).
The General Assembly’s adoption of ACRE in 2005 must be viewed in the context of this recent, repetitive assault on the power of local government. Tired of having to chip away piecemeal at the power of local government year after year, industrial agriculture’s legislative wish-list since 2001 has included a law that would punish local governments from making any effort to regulate or control the corporatization of agriculture. Legislative sponsors have taken the floor repeatedly for such legislation with words to the effect that ‘this law does not reduce local power.’ The fact that every single bill leading up to and including ACRE has been so poorly and inarticulately worded is testament to the industry’s effort to eliminate local power while allowing politicians to represent to the public that they were not doing so.
Together, industry and the General Assembly created Senate Bill 826 in the 2001-2002 legislative session. That bill sought to amend the Right-to-Farm Law with the following language: “No municipality shall adopt or enact a frivolous ordinance that would prohibit, restrict, or regulate an agricultural operation.” Working hand-in-hand with executive allies within the Pennsylvania State Association of Township Supervisors (PSATS), the sponsors of the Bill sprung it upon the PSATS’ membership for approval at its annual meeting in April of 2002. The tactic, which involved introducing the Bill to PSATS’ members at the last possible minute without following standard procedures for putting it on the annual meeting agenda, failed. The membership voted overwhelmingly not to support SB 826. The sponsors quickly renumbered it Senate Bill 406 and rushed it through the Senate on the pretext that PSATS executives supported it, but when it reached the House the ruse was exposed, and the bill was defeated.
    Senate leadership brought the bill back in April of 2002 as Senate Bill 1413. Again, that bill sought to amend the Right-to-Farm Law with the following language: “No municipality shall adopt an ordinance or implement any policy that is contrary to this act and its purposes or any other laws of this Commonwealth. Local regulation shall be consistent with this act and shall not unfairly discriminate against agricultural operations.” It also contained a coercive fee mechanism: “if the court determines that a municipality willfully or with wanton disregard violated a provision of this act, in whole or in part, the court may award the prevailing party reasonable attorney fees and costs of litigation or an appropriate portion of the fees and costs.”
    So it returned in December 2003 as House Bill 1222, which initially passed the House with provisions concerning DNA testing and sexually violent offenders under state criminal laws but nothing concerning the local regulation of agribusiness. When that bill arrived in the Senate, agribusiness industry’s legislative agents amended it to include language from the previously defeated Senate Bill 1413 and sent the whole thing back to the House for a concurrence vote. Many House members stood on the floor to oppose the tactic as “sleazy,” “antidemocratic,” and unconstitutional under the “one subject” provision of the state constitution. Representative Robert Freeman declared, “I find it interesting that whenever we are confronted by this issue of giving factory farm operations the ability to use a legal maneuver to create a chilling effect on our local governments in their operation of their police powers to protect public health and public safety, that this issue seems to come before us in the eleventh hour of our dealings.” 2003, December 18, Legislative Journal—House, p. 2507. None of these objections prevented the House from passing the bill, but Governor Ed Rendell did the honorable thing and vetoed it.
    After the veto of HB 1222, corporate agriculture sat down with the two major political parties, the Governor’s office, PSATS, and others to craft a bill that could make it through the General Assembly unscathed. That bill was House Bill 1646, which ultimately passed as Act 38 of 2005. To prove that HB 1646 was really designed to protect corporate farming over family farming, opponents of the bill offered numerous amendments to exclude “corporate farming” from the bill’s definition of “normal agricultural operations.” Despite the fact that Republicans in Washington, D.C. were then crying for “up or down” votes on President Bush’s judicial nominations, Pennsylvania House Republicans defeated every proposed opposition amendment by using an unwritten and contested House “custom” for tabling proposed amendments without debate and without tabling the primary legislation. See 2005, June 29, Legislative Journal—House, pp. 1582–1604.
Speaking against enactment of HB 1646, Representative George astutely noted how it was one in a line of attacks on the power of local government: “So what we have in our townships is barely a popularity contest, where we elect them and then we take the authority away, and then when something goes wrong, we blame it on them.” 2005, June 30, Legislative Journal—House, p. 1669. Representative Grucela, a member of the House Agricultural and Rural Affairs Committee, commented on the effect for agriculture: “Unfortunately, those amendments did not become part of this bill. But those amendments did make that distinction between CAFO’s and large corporate organizations that are driving many of the same family farm operations out of business.” 2005, June 30, Legislative Journal—House, p. 1670.

Summary of Argument
    I.    The people of East Brunswick Township possess an inalienable right to local self-government. This includes the right to enact and enforce laws to protect their health, safety, and general welfare. The spirit of this inherent right is reflected in sections 2 and 25 of the Pennsylvania Constitution’s Declaration of Rights. Act 38 of 2005 violates this right by empowering the Attorney General to sue to strike local laws enacted for the health, safety, or general welfare of local people, when such local laws are disapproved by the Attorney General, the General Assembly, and/or the state judiciary. All of those institutions are political entities subordinate to the people of East Brunswick Township and their inalienable right to local self-government.

    II.    Act 38 of 2005 specifically exempts from its operation all local ordinances that regulate or control nutrient management and sewage sludge. Because the Ordinance at issue is such a local ordinance, the Attorney General lacks power to bring this action and the Court lacks jurisdiction over it. Hence the entire “Petition for Review” should be dismissed.

III.    Summary relief is only available under Pa.R.A.P. 1532(b) when an action qualifies to be handled as a petition for review under Pa.R.A.P. 1501. Lawsuits under Act 38 of 2005 do not qualify to be handled as such, so this Court should deny the application for summary relief and, pursuant to Pa.R.A.P. 1504, reclassify the instant “Petition for Review” as a “Civil Complaint.”

    IV.    Even if lawsuits under Act 38 of 2005 qualify to be handled as petitions for review, summary relief is inappropriate in this case as the Attorney General’s right to relief is not clear. Quite the opposite, there are many disputed questions of law that are matters of first impression under Act 38, including: whether the land application of sewage sludge is a “normal agricultural operation” as defined by Act 38; whether Act 38’s definition of an “unauthorized local ordinance” is unconstitutionally vague; whether some or all of the Ordinance satisfies Act 38’s definition of an “unauthorized local ordinance” by either “prohibiting or limiting a normal agricultural operation” or “restricting or limiting the ownership structure of a normal agricultural operation”; whether the residents of East Brunswick Township possessed the authority to adopt the Ordinance under the peoples’ inalienable right to local self-government, the Second Class Township Code, the Nutrient and Odor Management Act, and/or the Solid Waste Management Act; and whether the Ordinance is prohibited or preempted by Act 38 of 2005, the Solid Waste Management Act, the Nutrient Management Act, the Agricultural Area Security Law, and/or the Second Class Township Code.



Argument
The Office of the Attorney General seeks to invalidate a democratically adopted Ordinance of East Brunswick Township in Schuylkill County. For its authority to do so it invokes Act 38 of 2005, a controversial law under which there have been only three reported decisions from this Court and none yet from the Pennsylvania Supreme Court. In a mere three-and-a-half pages of argument, the Attorney General cites only one reported Pennsylvania decision to suggest that the Ordinance violates or is preempted by no less than seven Pennsylvania statutes. The Office’s meager argument fails to quote the pertinent sections of most of the statutes, fails to explore the Second Class Township Code for municipal authority to adopt this Ordinance, neglects to explain or apply the test applicable to preemption analysis in Pennsylvania, and overlooks significant disputed legal issues necessary to a determination of this case. In short, the Attorney General’s argument lacks any substantial analysis, so the Township declines here to address the merits of the Attorney General’s bare conclusions.
The Township instead urges this Court to deny the “Application for Summary Relief” on the following grounds. First, Act 38 of 2005 is unconstitutional because it violates the inalienable right to local self-government held by the people of East Brunswick Township. Second, under the explicit terms of Act 38 of 2005, the Attorney General lacks power to bring this action, and this Court lacks subject matter jurisdiction to decide it, because the Act does not apply to local laws that regulate or control nutrient management or sewage sludge. Third, an action under Act 38 is not properly handled as a “petition for review” under chapter 15 of the Pennsylvania Rules of Appellate Procedure, so summary relief is unavailable under rule 1532(b). Fourth, there are questions of law not clearly answered in the Attorney General’s favor, so the right of relief under rule 1532(b) is not clear.

    I.    Act 38 Violates the Community Right to Local Self-Government
It is well-settled law emanating from the American Revolution that people possess inalienable and fundamental civil and political rights, and that a core political right is the peoples’ right to self-governance. It is axiomatic that people create governments to secure and protect their collective rights.  Over the past two hundred years, however, courts and legislatures have conferred certain core civil and political rights onto corporations, rights routinely wielded by corporate decisionmakers to override decisions made by community majorities.  Such nullification of community self-governance has become so commonplace under our system of law that its legitimacy is accepted as well-settled jurisprudence. So well-settled, in fact, that the suggestion that corporations lack and ought to lack civil and political rights can raise eyebrows across the political spectrum. But this seemingly well-settled law of the political rights of corporations is, in fact, utterly incompatible with the people’s inalienable right to self-government, and so cannot exist in a free society.

A.    Municipalities Have a Duty to Protect the Health, Safety, and Welfare of Residents

There can be no dispute that municipalities have a responsibility to act to protect the health, safety, and welfare of their citizens. The Commonwealth conceded as much in the prefatory language to Act 38, saying that Act 38’s purpose is to regulate municipalities “when local government units exercise their responsibilities to protect the health, safety and welfare of their citizens....” House Bill 1646, Session of 2005, Printer’s No. 2433, p. 2, line 8. The Second Class Township Code says of East Brunswick Township, “The board of supervisors may make and adopt any ordinances, bylaws, rules and regulations not inconsistent with or restrained by the Constitution and laws of this Commonwealth necessary for the proper management, care and control of the township and its finances and the maintenance of peace, good government, health and welfare of the township and its citizens, trade, commerce and manufacturers.” 53 P.S. § 66506. It also says, “The board of supervisors may adopt ordinances to secure the safety of persons or property within the township.” 53 P.S. § 66527.
    Local government’s power to legislate for health, safety, and welfare is reflected in (though not dependent upon) the structure of government emerging from America’s revolutionary period. When America declared independence from Great Britain in 1776, it did so with a fundamental document that marked the first time in western history that a nation state founded itself upon the inalienable right of the people to govern themselves. The American Declaration of Independence said:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

THE DECLARATION OF INDEPENDENCE, para.2 (U.S. 1776). Thomas Jefferson, the author of this document, packed many principles into these sentences. Government receives its power only from the consent of the governed, governmental power is constrained by foundational principles imposed by the people, and the people have the right to alter or abolish government that is destructive of the people’s fundamental rights. These principles on the source, scope, and abolition of governmental power are nothing less than a statement of the inalienable right of self-government, a right held by all people in a free society.
    The Declaration’s language on the right to self-government was a fundamental departure from prior statements on the rights of citizens. Whether in the Magna Carta of 1215, the Pennsylvania Frame of Government of 1682, or the Pennsylvania Charter of Privileges of 1701, prior foundational documents acknowledged only specific rights concerning property, religion, criminal procedure, and other aspects of individual freedom  in the context of a civil structure devoid of community freedom. The Declaration of Independence was the first foundational document in western history to recognize, at least in theory, the fundamental notion that people as a community have a civil right to self-government that cannot be alienated to any person, power, or governmental institution.
    Eleven days after the signing of the Declaration of Independence, a revolutionary committee convened in Pennsylvania to craft a constitution for the commonwealth. Gormley, Ken., et al., THE PENNSYLVANIA CONSTITUTION at 877 (2004). The people of the commonwealth did not get to approve Pennsylvania’s first constitution. Yet, it contained a preamble and a declaration of rights that, in sections III–V, acknowledged the peoples’ inalienable right to “community” self-government in its formulation of the source, scope, and abolition of governmental power:
WHEREAS all government ought to be instituted and supported for the security and protection of the community as such, and to enable the individuals who compose it to enjoy their natural rights, and the other blessings which the Author of existence has bestowed upon man; and whenever these great ends of government are not obtained, the people have a right, by common consent to change it, and take such measures as to them may appear necessary to promote their safety and happiness...

A Declaration of the Rights of the Inhabitants of the Commonwealth or State of Pennsylvania

.   .   .   . 

IV.    That all power being originally inherent in, and consequently derived from, the people; therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.

V.    That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family, or set of men, who are only part of that community: And that the community hath an indubitable, unalienable and indefeasible right to reform, alter, or abolish government in such manner as shall be by that community judged most conducive to the public weal.

Pennsylvania Constitution of 1776, ch. I, sections III–V (emphasis added) (reprinted in Gormley, THE PENNSYLVANIA CONSTITUTION at 878). The language here is significant. People are the source of all governmental power - which governments must exercise for the common benefit of people, nations, or communities - and to ensure that this is so, the “community” has “an indubitable, unalienable and indefeasible right to reform, alter or abolish government.” It is not the state that holds the right, nor elected officials or governmental bodies, nor corporate interests. Rather, communities of people naturally have a right to self-government, and they are powerless only in their inability to alienate that right to anyone.
    To understand the significance of the word “community” in this section of Pennsylvania’s first constitution, it is necessary to know the history of Pennsylvania government in the eighteenth century. As told by John L. Gedid in Gormley’s THE PENNSYLVANIA CONSTITUTION, it was a story of disenfranchised communities in the western part of the state fighting to share political power with communities around Philadelphia:
By the middle of the [eighteenth century], serious geographic divisions had grown up between persons in the western part of the colony and those in the east. For example, persons living in the western part of the colony after the French and Indian War began to work and campaign for reapportionment of representation, because they believed that the Quaker establishment in Philadelphia had neglected their needs during the hostilities. Indeed, it was clear that the Quakers in Philadelphia, Bucks and Chester counties had total control of the colony by mid-century.

Not only did the eastern Quakers control most political power in Pennsylvania, but they also worked diligently and, at least in most of the eighteenth century, successfully to preserve their monopoly on political power. The Quakers accomplished this domination by restricting the franchise and by refusing to create or admit new counties, especially in the western part of the colony. The voting restrictions prevented large numbers of persons in the east—mostly tradesmen, whose population had grown rapidly—from exercising power; and the county restrictions prevented large numbers of settlers—mostly farmers—on what was then the frontier in the western part of the colony from exercising power. Those in the west also campaigned vigorously for liberalization of naturalization requirements. Against this background of internal strife and division in Pennsylvania in 1776, the Continental Congress recommended to the colonies that they renounce their allegiance to the King and “adopt such government as shall ... best conduce to happiness and safety.”

There had grown up between the end of the French and Indian War and 1776 committees and military associations of dissatisfied citizens who worked for better representation, and these groups began calling for separation from England. The colonists’ reaction to the Revenue Acts of 1767 furnishes a good example of how these activist organizations arose. After the Revenue Acts were imposed, there was a strong protest in the colony. The colonists organized an association to oppose those Acts. This association had committees in the capitals of every county, and in most large towns, and these committees were an effective political organization and a valuable means of spreading information. They were very similar to political parties in many ways. Later, the experience with this “association” led to familiarity with how to organize to resist the English Crown. Thereafter, when the First Continental Congress in 1774 recommended the formation of committees throughout the colonies, the people of Pennsylvania were ready and immediately mobilized into committees.

One important reason for the rapid growth of these committees was the lack of representation of large numbers of inhabitants, especially in the western part of the colony. These “revolutionary committees” had no legal legitimacy, but they nevertheless played an important part of the opposition to England. These committees held a provincial convention in 1775. The stated purpose of the convention was to encourage manufacturing, but the real reason was “to familiarize the people with the necessity of subverting the old charter and establishing a new constitution on a more popular basis.” In fact, there is considerable evidence that the provincial conference met in order to draw up plans for a convention to draft a new constitution.

...

On May 15, 1776, the Continental Congress adopted a resolution that called for the colonies to throw off English rule and adopt their own constitutions. The response of the colony to the call of the Continental Congress was an address adopted by the committees of the various counties in a meeting in Philadelphia. The address was circulated to the inhabitants of Pennsylvania and called on them to separate from England, to elect representatives to draft a constitution, and to form a government “under the authority of the people.” After elections were held, the Pennsylvania convention met in Philadelphia on July 15, 1776. It consisted of elected members from nearly all of the counties. Most of the representatives were members of the revolutionary and military committees and associations of correspondence.

...

Who were the members of the Constitutional Convention of 1776?... There were few well known members of the Convention, and many were farmers or artisans who had no constitutional or legal training.

Gormley, THE PENNSYLVANIA CONSTITUTION at 37–39, 40, 41.
In light of this history, the use of the word “community” in the first Pennsylvania Constitution is no accident. The drafters knew that without acknowledging the inalienable, superior right of communities to local self-government, the people would not accept a new frame of government that would substitute an oppressive colonial machinery for an oppressive state machinery. To remind the general government that it always would remain inferior to the right of local self-government, the frame of general government crafted by the Constitution “explicitly incorporated the Declaration of Rights into the Constitution with the mandate that it ‘ought never to be violated on any pretence whatever.’” Gormley, THE PENNSYLVANIA CONSTITUTION at 43–44. In other words, the rights announced in the Declaration of Rights were not showpieces that the legislature could circumvent on a flimsy basis akin to rational basis scrutiny. The rights could never be violated ever, for any reason.
Historian Gordon Wood has shown that an anonymous writer called “Demophilus” influenced the Pennsylvania convention with language such as the following:
The intimate involvement by the ancient Saxons of the common people in politics was what most impressed the Pennsylvania radicals and Jefferson. Men became concerned about government because they participated daily in the affairs of their tithings and towns, not only by paying taxes but by performing public duties and by personally making laws. When these tasks were taken out of the people’s hands and given to superior bodies to perform, men fell into a political stupor, and have never, to this day, thoroughly awakened, to a sense of the necessity there is, to watch over both legislative and executive departments in the state. If they have now and then opened their eyes, it is only to survey, with silent indignation, a state from whence they despair of being able to recover themselves. Fixed establishments on the one hand, rooted habits and prejudices on the other, are not easily got over.

Quoted in Herrington, Popular Sovereignty in America 1776-1791, 67 TEMP. L. REV. 575, 585–86 (1994). Gordon Wood said derisively of this era of constitution making:
The trite theory of popular sovereignty gained a verity in American hands that European radicals with all their talk of all power in the people had scarcely considered imaginable except in those rare times of revolution. “Civil liberty” became for Americans “not ‘a government of laws,” made agreeable to charters, bills of rights or compacts, but a power existing in the people at large, at any time, for any cause, or for no cause, but their own sovereign pleasure,  to alter or annihilate both the mode and essence of any former government, and adopt a new one in its stead.” American liberty seemed in fact to have made revolution perpetual and civil disorder legitimate.

Wood, Gordon S., THE CREATION OF THE AMERICAN REPUBLIC 1776–1787 at 362 (1972).
    This structure of superior inalienable rights - and inferior powers of state government - bears repeating, because for too long Pennsylvanians have been yoked under a jurisprudence that says local governments are creatures of the state and inferior to the general government.  In fact, people are the source of all power, and communities possess an inalienable right to govern themselves.  Because the right is inalienable, it cannot be delegated, limited, or made subservient to any other power.  The power of local self-government is exempt from, and hence superior to, the general government of the state.
B.    People Legislating through Local Governments Have Banned Activity to Protect Their Health, Safety, and General Welfare

    The “local ordinance movement” derided by Senator Jubelirer in his comments in support of Act 38 is a movement of people legislating to protect their health, safety, and welfare in the face of a State government that has failed to do so. The “Findings and Purpose” section of the East Brunswick Township Ordinance at issue demonstrates this. In support of the Ordinance, the Board of Supervisors explicitly found that “[t]he land application of sewage sludge in East Brunswick Township poses a significant threat to the health, safety, and welfare of the citizens and environment of East Brunswick Township.” Ordinance § 3.
To prove this, the Board submitted facts to the world for candid consideration: that the Inspector General of the EPA says it cannot assure the public that land application practices are protective of human health and the environment; that according to the same Inspector General, failure to manage sludge properly can harm health and the environment; that state officials lack resources to administer their regulations properly; that two Pennsylvania boys have died from sludge; that land application by corporations is harmful not only because of the health and environmental effects, but also because state-conferred limited liability hampers the ability of communities to hold corporations responsible for harms caused by land application of sludge; and that federal and state regulatory schemes for land application of sludge purportedly prevent local governments from banning land application entirely. Although it does not appear in the Ordinance, the report by the NRC warns the public that EPA’s Part 503 regulations for land application of sewage sludge from 1993 are not up-to-date. On this record, the Board decided to ban land application of sludge by corporations and to regulate land application by persons using the same regulations promulgated at the state level.

C.    The Commonwealth Has Worked To Nullify the Right to Local Self-Government

    In exercising its right to local self-government, the people of East Brunswick Township face a legislative and judicial construct called preemption, under which local governments are considered inferior to state government and treated as such by legislators and state judges. This doctrine is not found within the state constitution. The Constitution gives the General Assembly power to provide for local governments, but says nothing about state power to trump the people’s right to local self-government: “The General Assembly shall provide by general law for local government within the Commonwealth. Such general law shall be uniform as to all classes of local government regarding procedural matters.” PA. CONST., art. IX, § 1.
The state Constitution contains nothing like the Supremacy Clause from the U.S. Constitution, the source of the doctrine of preemption at the federal level. To the contrary, the state Constitution contains a clause that says everything in the Declaration of Rights, including the power of the people to alter government that fails to act for their health, safety, or welfare (PA. CONST., art. I, § 2), is forever superior to and excepted from the operation of the state government (PA. CONST., art. IX § 25). These constitutional provisions mean that the people are not bound to follow the procedures of the general government for altering government at the local level. The “inalienable” “right” of the “people” to “alter” government “is excepted out of the general powers of government and shall forever remain inviolate,” so said right cannot be bound by the procedures of the general government.
Yet ever since adoption of the Pennsylvania Constitution of 1776, the inalienable right of community self-government has been under attack. The initial attack was by the forerunners of the Federalists, who sought to construct a general government for protecting property rights from “mobocracy” and “the tyranny of majorities.” As told by John L. Gedid in the Gormley treatise:
[t]here was strong opposition to the Constitution of 1776 from the time that it was first adopted. The period between 1776 and 1790 involved intense political battles between those who supported the Constitution and those who opposed it. The battle over the adoption of the Constitution of 1776 and the subsequent battle to replace it were so impassioned that is has been described as one of the “bitterest political struggles ever witnessed by an American State.” The supporters of the Constitution of 1776 were known as Constitutionalists. They were radical Whigs, largely from the revolutionary committees, many of whom hated the men of property because of what they perceived to be unjust representation, inadequate public safety, and property qualifications for voting. The Constitution of 1776 did away with all qualification for voting,  and this meant that a “completely new” class of voters was in control of the government: city artisans and farmers who had previously had no part of government, and who had not even been permitted to vote. They were strongly opposed by the financial interests in Philadelphia—bankers—who refused to cooperate with the new government of Pennsylvania, and by big landowners and “wealthy aristocracy.” Similarly, Republican politicians refused to attend the first meeting of the Assembly after the new Constitution had been adopted; as a result, the Assembly could not raise a quorum. The result was paralysis of the government in Pennsylvania and “near anarchy.” The situation in Pennsylvania was so critical that the Continental Congress threatened to take over the government of the state. Not long thereafter, and probably in response to this federal threat, the Republicans, led by James Wilson, changed tactics by deciding to work for reform and revision of the Pennsylvania Constitution from within.

Gormley, THE PENNSYLVANIA CONSTITUTION at 52-53.
So when Pennsylvania adopted a second constitution in 1790, again without ratification by the people, Section II of the Declaration of Rights contained an abbreviated statement of the right to self-government that eliminated the original constitution’s use of the word “community.”  The Pennsylvania Constitution of 1790 said:
That the general, great, and essential principles of liberty and free Government may be recognized and unalterably established, WE DECLARE,

Of the origin of power, and the end of government. Section II. That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety and happiness: For the advancement of those ends, they have, at all times, an unalienable and indefeasible right to alter, reform, or abolish their government, in such manner as they may think proper.

PENNSYLVANIA CONSTITUTION OF 1790, Art. IX Declaration of Rights, sec. II (reprinted in Gormley, THE PENNSYLVANIA CONSTITUTION at 880). The entire Declaration of Rights then closed with a section excepting the rights preserved from the general powers of government.
Exception from the general powers of government. Section XXVI. To guard against the transgression of the high powers which we have delegated, WE DECLARE, That everything in this article [on the Declaration of Rights] is excepted out of the general powers of government, and shall for ever remain inviolate.

PENNSYLVANIA CONSTITUTION OF 1790, Art. IX Declaration of Rights, sec. XXVI (reprinted in Gormley, THE PENNSYLVANIA CONSTITUTION at 883). According to the Gormley treatise, “the bad experience with legislative incursions on individual rights under the 1776 Pennsylvania Constitution led to express exception from legislative power of rights contained in the Declaration of Rights of the Constitution of 1790.” Gormley, THE PENNSYLVANIA CONSTITUTION at 56. In our view, this section recognizes the truism that inalienable rights are forever superior to the state government established by the constitution, not subject to said state government.
All Pennsylvania Constitutions since that of 1790 have contained, in the Declaration of Rights, both the inalienable right of self-government and the exemption of said right from the operation of the general government of the state. See PENNSYLVANIA CONSTITUTION OF 1838, Art. IX Declaration of Rights, secs. II, XXVI (reprinted in Gormley, THE PENNSYLVANIA CONSTITUTION at 884, 887); PENNSYLVANIA CONSTITUTION OF 1874, Art. I Declaration of Rights, secs. 2, 26 (reprinted in Gormley, THE PENNSYLVANIA CONSTITUTION at 887, 891); PENNSYLVANIA CONSTITUTION OF 1968, Art. I Declaration of Rights, secs. 2, 25 (reprinted in Gormley, THE PENNSYLVANIA CONSTITUTION at 891, 895). In the Constitution of 1968, the exception of rights from the power of the general government is titled, “Reservation of Powers in People.” In the Gormley treatise, Harry L. Witte notes that section 2 of the Declaration is, in essence, the heart of the American Declaration of Independence:
The assertion of Section 2 is far closer to the act and intent of the Declaration of Independence than it is to either the text or purpose of the United States Constitution, and its first expression in the Pennsylvania Constitution came soon after the adoption of the Declaration. The Framers of the first expression of the Political Powers clause in 1776 obviously believed it was not simply a formal, theoretical basis for government in general, but rather a power to be claimed by the people in real times and places. That is precisely what the Framers themselves were doing as they wrote it.

Gormley, THE PENNSYLVANIA CONSTITUTION at 96. In a footnote, Witte goes on to say:
If anything, Pennsylvania’s Political Powers provision asserts a broader right of revolution than does the Declaration of Independence. The latter carefully enumerates the many “Injuries and Usurpations” that demonstrated the intent of the King to establish “an absolute Tyranny over these States,” thereby showing the authors’ “decent Respect for the Opinions of Mankind” as they declared independence from Great Britain. The Pennsylvania declaration, in contrast, purports to be circumscribed only by the will of the people.

Gormley, THE PENNSYLVANIA CONSTITUTION at 96, n. 1.
    Working within this governmental structure, men of property and the judiciary of this state have manufactured a jurisprudence that relegates local governments to a position inferior to that of the General Assembly. In Marriott Corp. v. Board of Assessment Appeals of Montgomery County, 438 A.2d 1032, 1035 (Pa.Cmwlth. 1982), this Court said, “As a creature of the state, a municipal corporation (absent home rule) has only those powers granted to it by the General Assembly” and “a municipal corporation cannot invoke constitutional protections against its sovereign, the state.” Interpreting the Constitution of 1874, the Pennsylvania Supreme Court said, “[i]t is clear, therefore, beyond any possibility of doubt, that the Constitution gave the Legislature the power to impose, even on the local self-government of a city, any restrictions and limitations the Legislature desired.” Cali v. City of Philadelphia, 406 Pa. 290, 302, 177 A.2d 824, 830 (1962). Again from this Court, “a [state] statute may negate a home rule charter when the conflict involves a matter of statewide magnitude.” In re District Attorney, 756 A.2d 711, 714 (Pa.Cmwlth. 2000). The Supreme Court of Pennsylvania has said that the police power of the state essentially swallows whole the power of a home rule municipality: “the General Assembly may negate ordinances enacted by home rule municipalities when the General Assembly has enacted a conflicting statute concerning ‘substantive matters of statewide concern” and such matters “include matter involving ‘the health, safety, security and general welfare of all the inhabitants of the State.” Devlin v. City of Philadelphia, 580 Pa. 564, 578–79, 862 A.2d 1234, 1242 (2004). Under some of these principles, this Court held that city residents lack a self-government right to even set the rules for a city gas system. Philadelphia Facilities Management Corp. v. Biester, 431 A.2d 1123, 1132 (Pa.Cmwlth. 1981).
    Operating within this philosophical framework, the General Assembly has worked for the past decade, in statute after statute, to whittle down municipal authority exercised to protect health, safety, and welfare by controlling corporate agriculture. As explained above, the General Assembly has done so by tinkering with old laws and passing new ones to cover municipal regulation and control of factory farms and nutrient management, forestry, mining, water resources, and genetically modified seeds.

D.    Act 38 Builds on the Doctrine of Preemption By Now Pitting the Enforcement Power of the State Directly Against Municipalities

    Act 38 ratchets up the doctrine of preemption in two dangerous ways. First, it seeks to eliminate “health” and “safety” from the equation of what a local government can and cannot regulate in industrial farming under conventional state law. Before Act 38, some (though not all) of the General Assembly’s preemption statutes explicitly contained saving language concerning health and safety. For example, the pertinent provisions of the Right to Farm Act, the Agricultural Area Security Law, and the Municipalities Planning Code say that they do not proscribe local law that is directly related to health and safety. See 3 P.S. § 953(a); 3 P.S. § 911(a); 53 P.S. §10603(h). In contrast, Act 38 proscribes local law that merely “limits” a normal agricultural operation or the ownership structure of such an organization. 3 Pa.C.S. § 312 (for definition of “unauthorized local ordinance”). As the instant case makes clear, the Attorney General intends to use Act 38 to attack local laws that touch industrial agriculture, however tangentially, without spending a drop of ink analyzing the health and safety concerns that motivate any particular piece of local law.
    The Attorney General’s power under Act 38 is the second dangerous characteristic of the law. Until Act 38, state preemption was primarily a legislative and judicial matter enforced on a case-by-case basis between parties with actual controversies, normally between a community with a law and a corporation with a property interest at stake. Act 38 adds the executive branch to the picture by deputizing the Attorney General to attack local legislation on behalf of corporations and agribusiness interests. Hence, while people are the source of all governmental power, Act 38 allows corporate interests to use the power of the general government to invalidate what the people have done through their local governments to protect their health, safety, and welfare.

E.    This Preemption Scheme Violates the Rights of Communities to Protect Their Health, Safety, and Welfare

    By nullifying a community’s right to legislate for its health, safety, and welfare, Act 38 violates the right of local self-government. As covered above, that right is inherent in the people and cannot be alienated to any person, government, or corporate interest. The Pennsylvania Constitution reflects these self-evident truths in the Declaration of Rights. It says “all power is inherent in the people” and “for their peace, safety and happiness ... they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.” PA. CONST., art. I, § 2. This right is not subject to the general government’s procedures for altering government or for providing for local government because, “everything in [the Declaration of Rights] is excepted out of the general powers of government and shall forever remain inviolate.” PA. CONST., art. I, § 25.
    An example from the realm of property rights jurisprudence should serve to make the point. In Erdman v. Mitchell, 207 Pa. 79, 56 A. 327 (1903), the Supreme Court of Pennsylvania explained how section 25 of the Declaration of Rights prevents government from infringing the inalienable right to property in section 1 :
The first article of the Constitution says: 'That the general great and essential principles of liberty and free government may be recognized and unalterably established, we declare, that all men are born equally free and independent *91 and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation and of pursuing their own happiness.' Then follows the conclusion of this section: 'Everything in this article is excepted out of the general powers of the government and shall forever remain inviolate.' This clause, unlike many others in the Constitution, needs no affirmative legislation, civil or criminal, for its enforcement in the civil courts. Wherever a court of common pleas can be reached by the citizen, these great and essential principles of free government must be recognized and vindicated by that court, and the indefeasible right of liberty and the right to acquire property must be protected under the common-law judicial power of the court. Nor does it need statutory authority to frame its decrees, or statutory process to enforce them against the violators of constitutional rights.

The right to the free use of his hands is the workman's property, as much as the rich man's right to the undisturbed income from his factory, houses, and lands. By his work he earns present subsistence for himself and family. His savings may result in accumulations which will make him as rich in houses and lands as his employer. This right of acquiring property is an inherent, indefeasible right of the workman. To exercise it, he must have the unrestricted privilege of working for such employer as he chooses, at such wages as he chooses to accept. This is one of the rights guarantied him by our Declaration of Rights. It is a right of which the Legislature cannot deprive him, one which the law of no trades union can take from him, and one which it is the bounden duty of the courts to protect. The one most concerned in jealously maintaining this freedom is the workman himself.

A conspiracy is the combination of two or more persons by some concerted action to accomplish an unlawful purpose. It is unlawful to deprive a mechanic or workman of work by force, threats, or intimidation of any kind. A combination of two or more to do the same thing by the same means is a conspiracy. That, by the legislation referred to, such conspiracy is no longer criminal, does not render it lawful. At common law the courts held that such combination was so prejudicial to the public interests, *92 and so opposed to public policy, as rendered it punishable criminally; but the Legislature, which generally determines what is and what is not public policy, has declared that it is no longer a crime or misdemeanor. But this is as far as it has gone. It is as far as it could go without abolishing the Declaration of Rights. To do that, the whole people of the commonwealth must be directly consulted, and they must give assent. For, while the plain implication from the Declaration is that the power to limit this indefeasible right rests solely with the people, yet, when they adopted the Constitution of 1874, with an extreme of caution they expressly said, 'Everything in this article is excepted out of the general powers of government and shall forever remain inviolate.' That is, shall forever remain with the people. They will not trust their own Legislature with power to minimize or fritter it away--much less, a trades union. If the Legislature today abolished indictment for willful and malicious trespass, or abolished the writ of estrepement, to-morrow courts of equity would still be bound, under the Declaration of Rights, to protect the citizen in the peaceable possession and enjoyment of his land, even if to do so they were compelled to imprison the lawless trespasser who refused to obey their writs. So the same courts are still bound to protect the humblest mechanic or laborer in his right to acquire property.

Id.
    Likewise, the right of the people in local communities to make and change government for their health, safety, and welfare is inherent and inalienable. It does not need general legislation to activate it, and it cannot be nullified by general legislation. Hence, general laws that nullify the right of local self-government - the right of communities to legislate for their health, safety, and welfare - are unconstitutional.
    It is time to upend the subversion of the rights of local majorities. As recognized in the Pennsylvania Constitution of 1776, the right of the people to govern is “sole, exclusive, and inherent,” the general government is at all times inferior and accountable to the people, and “communities” have an “indubitable, unalienable, and indefeasible” to change government at any time as they see fit. The fact that the community has this inherent right means that it need not indulge in the Herculean task of tweaking the entire frame of state government in order to protect its health, safety, and general welfare from the conduct of minorities in business corporations. Community majorities have an inherent and inalienable right to legislate for their health, safety, and general welfare to protect themselves from the conduct of minorities in business corporations. Because this right is inalienable, the people never gave it to the General Assembly, and so the General Assembly is powerless to trod upon it.
    Under these principles, Act 38 of 2005 is unconstitutional because it violates the inherent, inalienable right of a local community to legislate for its health, safety, and general welfare against the conduct of business corporations. Conscious of the fact that sewage sludge is dangerous to the life and health of the people of East Brunswick Township, a majority of local citizens acted through their Board of Supervisors to ban land application of sludge by corporations and to regulate land application by people. The General Assembly is powerless to prohibit or prevent the people of East Brunswick Township from legislating to protect themselves in this regard. Act 38 empowers minorities in business corporations to harness the power of the State to overturn local self-government by human majorities in East Brunswick Township. Because this infringes upon the people’s inherent, inalienable right to local self-government, it is unconstitutional as a matter of law.

    II.    The Court Lacks Jurisdiction under 3 Pa.C.S. § 313(c)
There is no question that the Ordinance at issue regulates, in part, the land application of sewage sludge in East Brunswick Township. There also is no question that sewage sludge is included in the definition of “nutrient” under the Nutrient and Odor Management Act, which regulates the use of nutrients by certain kinds of farms. 3 Pa.C.S. § 503. These undisputed facts exempt the Ordinance at issue from scrutiny under Act 38 of 2005.
Section 313(a) of Act 38 says, “A local government unit shall not adopt nor enforce an unauthorized local ordinance.” 3 Pa.C.S. § 313(a). Subsection (c) of section 313, however, qualifies the scope of the prohibition in subsection (a) with the following language:
Construction.—Notwithstanding the provisions of this section, nothing in this chapter shall be construed to diminish, expand or otherwise affect the legislative or regulatory authority of local government units under State law, including the following: (1) Chapter 5 (relating to nutrient management and odor management). (2) The regulation, control or permitting procedures for the land application of class A or B biosolids.

3 Pa.C.S. § 313(c).
    The result is that local ordinances that regulate nutrient management or odor management or sewage sludge are completely exempt from attack under Act 38. This follows from the plain language of Act 38, upon which statutory interpretation is primarily based under Pennsylvania law when the language is clear. See 1 Pa.C.S. §§ 1903, 1921(b). In short, subsection (c) says that notwithstanding the prohibitory language in subsection (a), nothing in all of chapter 3 of Title 3 “shall be construed to ... affect the legislative or regulatory authority of local government units” with respect to nutrient and odor management or the “regulation, control or permitting procedures for the land application of class A or B biosolids.”
    The Attorney General is likely to argue that subsection (c) does not exempt any municipal ordinances from Act 38 scrutiny, but only clarifies that Act 38 does not alter municipal authority regarding nutrient management, odor management, and sewage sludge. Such a restrictive reading of subsection (c) is wrong under the guiding principles of statutory construction. The language of subsection (c) is that Act 38 does not “diminish, expand or otherwise affect” municipal regulatory authority over nutrient management, odor management, and sewage sludge (emphasis added). The words “diminish” and “expand” alone clarify that Act 38 does not alter municipal authority in any way over the listed subjects. The words “or otherwise affect” must mean something more under the principle that no word is to be rendered meaningless or surplusage in interpretation of a statute. The Statutory Construction Act declares that “[e]very statute shall be construed, if possible, to give effect to all its provisions” (1 Pa.C.S. § 1921(a)) and that “the General Assembly intends the entire statute to be effective.” 1 Pa.C.S. § 1922(2). See Daly v. Hemphill, 411 Pa. 263, 273, 191 A.2d 835, 842 (1963) (“[t]he Legislature cannot be deemed to intend that its language be superfluous and without import.... Every word, sentence, or provision in a statute must be given effect in construction of the statute.”) Under these principles, the word “affect” necessarily means something more than either “expand” or “diminish,” and the comprehensive scope of the phrase “or otherwise affect” necessarily means that the subject kinds of ordinances—those concerning nutrient management, odor management, or sewage sludge—are exempted from the operation of Act 38.
    This result follows not just from interpretation of subsection (c), but also from comparison of that subsection with Act 38’s definition of “unauthorized local ordinance.” Such an ordinance is one that prohibits or limits a normal agricultural operation “unless the local government unit ... has expressed or implied authority under State law to adopt the ordinance” and “is not prohibited or preempted under State law from adopting the ordinance.” 3 Pa.C.S. § 312. Hence, the very definition of “unauthorized local ordinance” already excludes ordinances for which there is express or implied authority and no prohibition or preemption under State law, whatever their subject matter. In other words, this definition establishes that Act 38 does not enlarge or diminish municipal authority under state law.
In contrast, subsection (c) of section 313 carves out something special and distinct, only for ordinances that concern nutrient management, odor management, or sewage sludge. What is that something special and distinct? To give full effect to the language “or otherwise affect” without rendering it superfluous, it must mean that ordinances on these subjects are completely exempt from the operation of Act 38. Otherwise, subsection (c) accomplishes nothing more with respect to ordinances on nutrient management, odor management, and sewage sludge than the definition of “unauthorized local ordinance” already accomplishes with respect to all ordinances, whatever the subject matter.
    This reading of subsection (c) is consistent with the legislative intent behind Act 38, which is the guiding force in statutory interpretation. 1 Pa.C.S. § 1921(a). Act 38 declares that “[i]t is the purpose of this act to ensure that when local government units exercise their responsibilities to protect the health, safety, and welfare of their citizens in regulating normal agricultural operations, that ordinances are enacted consistent with the authority provided to local government units by the laws of this Commonwealth.” House Bill 1646, Session of 2005, Printer’s No. 2433, p. 2. It also declares that “[i]t is further the intent of this act” to “provide[] a dispassionate and unprejudiced legal review of local ordinances regulating normal agricultural operations to determine whether a local ordinance complies with the Commonwealth’s existing statutes.” Id. As already covered, the definition of “unauthorized local ordinance” accomplishes this intention by excluding all ordinances on all subjects when the municipality has express or implied authority under state law and is not prohibited or preempted by state law. Subsection (c) of section 313 carves out something special with respect to ordinances concerning nutrient management, odor management, and sewage sludge. That something special can only be complete exclusion of such ordinances from the operation of Act 38. Any other reading of subsection (c) reduces it to meaningless fluff, perhaps inserted by the General Assembly merely to placate special interests without having substantive effect, a result forbidden under State law.

III.    Actions under Act 38 Are Not Properly Styled As Petitions for Review
Summary relief is only available under Pa.R.A.P. 1532(b) when an action qualifies to be handled as a petition for review under Pa.R.A.P. 1501. Lawsuits under Act 38 of 2005 do not qualify to be handled as such, as Pa.R.A.P. 1501(a) limits the petition procedure to the following actions: (1) appeals from an administrative agency to an appellate court; (2) appeals to an appellate court pursuant to 2 Pa.C.S. § 702, 42 Pa.C.S. § 5105, or any other statute providing for judicial review of a determination of a government unit; (3) original jurisdiction actions heretofore cognizable in an appellate court by actions in the nature of equity, replevin, mandamus or quo warranto or for declaratory judgment, or upon writs of certiorari or prohibition; and (4) matters designated by general rule. Pa.R.A.P. 1501(a)
    Subsections (1) and (2) are clearly inapplicable here, and the Office of Attorney General does not appear to invoke them. Those sections cover appeals of “determinations” of “government units,” as those terms are defined by Pa.R.A.P. 102. The Attorney General does not purport to be filing an appeal to challenge an order of any kind, but rather seeks an injunction and declaratory judgment with respect to the validity of a municipal ordinance, which is not an order or other governmental determination. As such, this action is not covered by any “general rule” in the appellate rules of court, and subsection (4) of rule 1501(a) is also inapplicable.
    The Attorney General appears to invoke subsection (c) of rule 1501(a) as the basis upon which to style its action as a petition for review. The full language of subsection (c) makes chapter 15 applicable only to: “Original jurisdiction actions heretofore cognizable in an appellate court by actions in the nature of equity, replevin, mandamus or quo warranto or for declaratory judgment, or upon writs of certiorari or prohibition.” Pa.R.A.P. 1501(a)(c) (emphasis added). The language “heretofore cognizable in an appellate court” means only such original jurisdiction actions as could have been brought in an appellate court in equity, replevin, mandamus, quo warranto, declaratory judgment, or writ of certiorari or prohibition “at common law.” See, e.g., Machipongo Land and Coal Co., Inc. v. Commonwealth, 624 A.2d 742, 746 n. 5 (Pa.Cmwlth. 1993), rev’d on other grounds and remanded, 648 A.2d 767 (Pa. 1994).
    Act 38 creates a wholly new breed of civil action in the Commonwealth: a lawsuit by the Office of the Attorney General on behalf of a private party to invalidate a duly enacted ordinance of a municipality. There is no precedent for such an action in the common law, no basis for holding that such an action was “heretofore cognizable in an appellate court” in an action “at common law.”
    The fact that the Commonwealth is the petitioner here confirms that this case is not properly handled as a petition for review. Civil actions by the Commonwealth are properly handled under this Court’s original jurisdiction pursuant to 42 Pa.C.S. § 761(a)(2), which the Attorney General seems to invoke, without specifying a subsection, in its jurisdictional statement (see “Petition for Review,” p. 1, ¶ 2). As the Darlington treatise on appellate practice says, “Because Chapter Fifteen applies only to appellate review of noncourt government unit determinations and original jurisdiction actions regarding governmental determinations, Chapter Fifteen generally does not apply to actions commenced in the Commonwealth Court’s original jurisdiction by the Commonwealth government. When the Commonwealth initiates an original action in the Commonwealth Court, the practice is generally governed by the Pennsylvania Rules of Civil Procedure, unless a Rule of Appellate Procedure Applies.” G. Ronald Darlington et al., PENNSYLVANIA APPELLATE PRACTICE 2nd edition, Thomson West, 2003, p. 15-9, § 1501:7. See., e.g., Commonwealth v. National Apartment Leasing, 529 A.2d 1157 (Pa.Cmwlth. 1987) (unfair trade practices action by Attorney General filed as civil complaint in equity).
    The Office of the Attorney General is likely to argue that its action qualifies under subsection (c) of Pa.R.A.P. 1501(a) because the Office seeks an injunction and a declaratory judgment. This argument is wrong for two reasons. First, as already noted, it is only equitable and declaratory relief “heretofore cognizable in an appellate court” in actions “at common law” that now qualify as original jurisdiction petitions for review under subsection (c). This is not such a case, for the reasons already explained: a state action by the Attorney General to invalidate a local ordinance is a new animal under the law.
Second, the Attorney General’s request for an injunction and declaratory relief is not a justiciable case or controversy, because there is no allegation in its “Petition for Review” that the Ordinance is being enforced or that a particular party has been threatened with enforcement. See Pennsylvania Gamefowl Breeders Assn. v. Commonwealth, 533 A.2d 838, 840–41 (Pa.Cmwlth. 1987); Berger v. Commonwealth, 400 A.2d 905, 907 (Pa.Cmwlth. 1979) (petition for review not available for declaratory judgment, injunction, or mandamus with respect to “an event which may never occur”). Hence this case can only stand, if at all, as an action under Act 38 “to invalidate the unauthorized local ordinance.” 3 Pa.C.S. § 315(a). An action by the Commonwealth against a municipality “to invalidate” a duly enacted ordinance is not one encompassed by the original jurisdiction actions covered by subsection (c) of Pa.R.A.P. 1501(a).
    As a consequence, this Court should exercise its authority under Pa.R.A.P. 1504 to reclassify this case as a civil action under 42 Pa.C.S. § 761(a)(2) that generally is governed by the Pennsylvania Rules of Civil Procedure pursuant to Pa.R.A.P. 106.


    IV.    The Petition Should Be Denied Because the Right to Relief Is Not Clear
    Even if Act 38 actions are properly handled under chapter 15, the Court should deny the instant “Application for Summary Relief.” Judgment by summary relief is available only when “the right of the applicant thereto is clear.” Pa.R.A.P. 1532(b). “In ruling on an application for summary relief, [the court] must view the evidence of record in the light most favorable to the non-moving party and enter judgment only if there are no genuine issues as to any material facts and the right to judgment is clear as a matter of law.” Central Dauphin School District v. Commonwealth, 598 A.2d 1364, 1366–67 (Pa.Cmwlth. 1991). Summary relief is unavailable when it depends upon matters of first impression under a statute for which the nonmoving party advances a plausible interpretation. Id. at 1373.
    Act 38 was enacted in 2005 and, so far, has been the subject of just three reported decisions from this Court (and none from the Supreme Court), all of which ruled on preliminary objections without reaching the substantive merits of those cases. See Commonwealth v. Richmond Township, 917 A.2d 397 (Pa.Cmwlth. 2007); Commonwealth v. Locust Township, 915 A.2d 738 (Pa.Cmwlth. 2007); Commonwealth v. Lower Oxford Township, 915 A.2d 685 (Pa.Cmwlth. 2006). In the case at bar, there are many disputed questions of law that are matters of first impression under Act 38, making summary relief unavailable to the Office of the Attorney General.
    First, is the land application of sewage sludge a “normal agricultural operation” under Act 38? If not, as the Township asserts, then the Ordinance cannot offend Act 38, for the definition of an “unauthorized local ordinance” implicates only ordinances that either prohibit or limit a normal agricultural operation or that restrict or limit the ownership structure of such an organization. 3 Pa.C.S. § 312. At this stage of the proceedings, the Court is not called upon to answer the question, for the issue at hand is whether the Attorney General’s position is necessarily and clearly correct. This is a standard the Attorney General cannot satisfy. Act 38 defines “normal agricultural operation” by referring to the definition of that term under the so-called Right to Farm Act. See 3 Pa.C.S. § 312; 3 P.S. § 952. That definition, like much of Act 38, is confusing and grammatically problematic. There is not yet a single reported decision interpreting the definition under either Act 38 or the Right to Farm Act. At the appropriate stage in these proceedings, the Township will present its case that because the Right to Farm Act was enacted in 1982 to protect family farms from nuisance suits and ordinances, its definition of “normal agricultural operation” does not cover the practices of corporate agribusiness that rise above the level of mere nuisance to implicate health and safety concerns. The Township’s reasonable argument in this regard precludes a ruling at this stage that the Attorney General’s right to summary relief is clear.
    Second, is the definition of “unauthorized local ordinance” unconstitutionally vague, thus rendering Act 38 unenforceable? The Township will argue that such is the case. The definition covers ordinances that “prohibit or limit” a normal agricultural operation or that “restrict or limit” the ownership structure of a normal agricultural operation. The word prohibit seems clear, but what do the words “limit” and “restrict” mean? How are the state’s thousands of municipalities supposed to know from this language what it means to limit or restrict a “normal agricultural operation” or its ownership structure? What does the phrase “ownership structure” mean? Does it prevent a Township from banning corporations from the land application of sewage sludge? These are matters of first impression under Act 38, so the right of the Attorney General to relief cannot possibly be called clear at this stage of the case.
    Third, if the definition of “unauthorized local ordinance” is not unenforceably vague, does it encompass all of the Ordinance sections challenged by the Attorney General? For example, section 7.5 of the Ordinance concerns the constitutional rights of corporations in East Brunswick Township. Section 7.6 concerns the rights of natural communities. Sections 11 and 12 are enforcement mechanisms for the Ordinance, some parts of which might survive challenge after this Act 38 litigation. On their face, none of these sections have anything to do with agricultural operations, normal or otherwise.  If the Court denies the Township’s preliminary objection concerning these sections, then the merits question remains: do these particular sections qualify as an “unauthorized local ordinance” under Act 38? These are questions of first impression under Act 38, for which the Attorney General’s right to relief is not clear.
    Fourth and finally, if some or all parts of the Ordinance qualify under subsection (1) of Act 38’s definition of “unauthorized local ordinance,” did the Township have express or implied authority to enact the challenged provisions, or was its power prohibited or preempted by conventional State law? In a mere three-and-a-half pages of argument, the Attorney General says the answers are clearly in its favor. This is simply not so. The Ordinance shows that in addition to the inherent right of local self-government, the Township relied on many sections of the Second Class Township Code for authority to do what it has done. See Ordinance, § 2, “Authority” (relying on 53 P.S. §§ 65101, 66506, 66521, 66527, 66529, and 66601). The Attorney General’s brief analyzes none of these provisions. Nor does the Attorney General make any effort to quote the specific language from all seven statutes upon which it relies for its prohibition and preemption arguments, nor to lay out and apply the test for preemption in Pennsylvania. Rather, the Office cites just one case, Liverpool Township v. Stevens, to erase the whole Ordinance in one fell swoop, a case that did not concern all seven state statutes relied upon by the Attorney General.
The Township need not here respond to this meager argument with a full defense in support of its authority under conventional state law to adopt the Ordinance.  The Office of the Attorney General has not satisfied its burden that its right to relief is clear, so the Court should deny the “Application for Summary Relief” and set this case on track for trial of the important matters at issue.


    Respectfully submitted,


    _______________________________________
        Thomas A. Linzey, Esq. I.D. No. 76069
        Community Environmental Legal Defense Fund
        675 Mower Road
        Chambersburg PA 17201
        Telephone: 717-709-0457

        Attorney for Respondents


Submitted this 15th Day of November, 2007


VERIFICATION


    I, Thomas A. Linzey, verify that the statements contained in the foregoing document are true and correct to the best of my knowledge, information, and belief. I understand that false statements are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.


Dated this 15th Day of November, 2007



        ___________________________________
        Thomas Alan Linzey



CERTIFICATE OF SERVICE OF PROCESS

    I, Thomas A. Linzey, hereby certify that on November 15, 2007, I caused to be served a true and correct copy of the foregoing document titled

Brief of Respondents in Opposition to Application for Summary Relief

By hand delivering the same to the following:

Susan L. Bucknum, Senior Deputy Attorney General
Office of the Attorney General
Litigation Section
15th Floor, Strawberry Square
Harrisburg, Pennsylvania 17120


                        _________________________________
                        Thomas Alan Linzey, Esq.
                        Community Environmental Legal Defense Fund