Litigators in the Firm’s Washington, DC office persuaded the Pennsylvania Supreme Court to grant an appeal in a tort case in which 34 plaintiffs allege that the land application of biosolids to farmland created a nuisance and caused health problems.  Oral argument will likely be heard in the spring of 2015 in Gilbert v. Synagro on the question of whether a judge or jury should decide whether land application of biosolids is a “normal agricultural operation” that qualifies for protection from tort lawsuits under the Pennsylvania Right to Farm Act.  Gilbert v. Synagro, 2014 Pa. LEXIS 2708 (October 9, 2014).

Land application of biosolids is a recycling practice used by thousands of towns and cities to manage the majority of the country’s sewage sludge.  TheGilbert case has attracted intense interest as eleven amici appeared in the Pennsylvania Superior Court to support the argument of Synagro and its farmer co-defendants that the application of the Right to Farm Act blocked this lawsuit and that a judge, not a jury, should interpret and apply the Act.  Beveridge & Diamond represents Synagro, the industry leader in biosolids recycling.

The Plaintiffs sued Synagro and the farmers who used the biosolids in York County, Pennsylvania in 2008, alleging that the biosolids constituted a nuisance and trespass.  The trial court dismissed the case in 2012 because the Plaintiffs did not file suit until more than a year after the biosolids were applied, entitling the Defendants to the protection of the statute of repose for farm operations under the Right to Farm Act.  A divided Superior Court reversed that ruling in April 2014, determining that a jury would have to decide whether using biosolids on a farm pursuant to a state permit was entitled to protection under the Act.

Specifically, the Right to Farm Act only protects farm activities that qualify as a “normal agricultural operation.”  The Defendants argued, and the trial court agreed, that the heavily regulated status of land application of biosolids and its use by a small but significant number of farmers qualified biosolids use for protection under the Right to Farm Act as a matter of law.  The Superior Court’s 2-1 majority reversed the trial court, ruling that whether biosolids use was a normal agricultural operation was a question of fact for jury review.  The Superior Court majority further ruled that the application of a statute of repose posed a jury question despite the purpose of a statute of repose to bar claims after a certain period of time.

The Right to Farm Act, and in particular the protections it provides from litigation for Pennsylvania farms through its statute of repose provisions, is important to Pennsylvania agriculture and to the Commonwealth’s cities and towns that depend on recycling their biosolids to farms as fertilizer.  The eleven amici supporting the Defendants in the Superior Court include the Pennsylvania Department of Environmental Protection, the State Attorney General’s Office, the Pennsylvania Farm Bureau, and the City of Philadelphia, who all filed briefs regarding the importance of biosolids recycling and the necessity of protecting it under the Right to Farm Act.

The Gilbert case has been closely followed across the country because most states have similar right to farm laws and thousands of communities rely on applying their biosolids to farmland.