Pennsylvania Municipality Passes Health Ordinance Targeting CAFOs

Written by Katharine Richter

On August 6, 2015, Codorus Township Board of Supervisors passed a health ordinance intended to “establish health, safety, and welfare regulations for concentrated animal feeding operations (CAFOs)” in Codorus township.

The ordinance defines four different classes of CAFOs based upon animal equivalent unit (AEU), which classifies by “one thousand pounds live weight of livestock or poultry animals, regardless of individuals compromising the unit.”  The ordinance lists spacing requirements that are required between every class of CAFOs and the distance is “measured from the nearest point of one CAFO’s confinement or waste containment system to the nearest point of another CAFO’s confinement or waste containment system.”  

The ordinance also requires every CAFO to apply for a Township Health Permit which is valid for five years and needs to be renewed every five years.  The fee for a Township Health Permit for a class II CAFO, which is defined as having “a capacity of 1,500 to less than 2,000 AEUs,” is $2,000.  If a CAFO is classified as a class I, meaning it “has the capacity of 2,000 or more AEUs,” the Township Health Permit costs increase to $10,000.

The ordinance contains further measures pertaining to the control of airborne pathogens by installing “filters and UV light systems on all exhaust fan assemblies” and denying Township Health Permits if the Manure Storage Structure fails to meet “compliance with all state and federal regulations.”

Court Enjoins Implementation of the New York City “Soda Ban”

On July 30, 2013, an appeals court for the state of New York affirmed a lower court’s ruling that the Sugary Drinks Portion Cap Rule, commonly known as the Soda Ban, is unconstitutional.

Mayor Bloomberg announced the Portion Cap Rule (“Rule”) on May 30, 2012 as a proposed amendment to Article 81 of the New York City Health Code to require food service establishments to cap at sixteen ounces the size of cups and containers used to offer, provide and sell sugary beverages. His stated purpose was to address the rising obesity rates in New York City. The Board of Health voted to adopt the Rule on September 13, 2012.

Plaintiffs brought suit in the Supreme Court on October 12, 2012 claiming that the Rule violated separation of powers as defined in Boreali v. Axelrod, Boreali v. Axelrod, 71 N.Y.2d 6, 9-14 (N.Y. 1987), and was arbitrary and capricious, and the Supreme Court agreed, declaring the regulation invalid. Coal. of Hispanic Chambers of Commerce v. Dep’t of Health, No. 653584/12, 2013 N.Y. Misc. LEXIS 1216 at *1 (N.Y. Sup. Ct. Mar. 11, 2013). On appeal, the court affirmed the Supreme Court’s ruling that the Rule violated the separation of powers doctrine of the State Constitution that establishes a boundary between the actions of the legislature and an administrative agency by failing the test set out in Boreali. It stated that the Rule “is one especially suited for legislative determination as it involves difficult social problems which must be resolved by making choices among competing ends.” The court enjoined the Board of Health from implementing and enforcing the Rule, but did not address whether the rule was arbitrary and capricious.

To read the court’s opinion, please see the New York Court’s website, at page 47.

Written by Sarah L. Doyle - Research Assistant
The Agricultural Law Resource and Reference Center
@PSUAgLawCenter
July 31, 2013