This week the Pennsylvania Commonwealth Court (Commonwealth v. East Brunswick Township) used the doctrine of preemption to overturn a local ordinance that attempted to regulate the application of sewage sludge. Sewage sludge, typically in the form of residue from wastewater treatment plants, is a form of pasture fertilizer that farmers love. It is nitrogen rich and often provided for free. However, for reasons related to everything from heavy metals to odor to irrational fears, sewage sludge is regulated in its application.
The doctrine of preemption is simply stated. When a federal or state government adopts comprehensive regulations governing a particular activity, lower governments may not adopt their own regulations because they have been “preempted.” The doctrine is not without a strong policy rationale. In North Carolina, solid waste disposal is a statewide issue, and the General Assembly has adopted a comprehensive set or laws and regulations applicable statewide. It is unmanageable both for statewide regulators as well as companies working regionally or statewide in the area of solid waste if every county and municipality had its own regulations.
The Pennsylvania Commonwealth Court agrees, quoting an earlier Pennsylvania case, Liverpool Township v. Stephens, 900 A. 2d 1030 (Pa. Cmwlth. 2006): “Ordinance 13 not only conflicts with the Solid Waste Management Act, it also interferes with the General Assembly’s goal of a uniform and comprehensive scheme of regulation of municipal sewage treatment that leaves no room for side-by side municipal regulation . . . Balkanized regulation of the disposal of municipal sewage sludge would stand as an obstacle to the SWMA’s comprehensive regulatory scheme.” (emphasis in the opinion).
To my knowledge, North Carolina courts have not used the term “Balkanization” to describe a problem governed simultaneously by multiple regulatory schemes, but it’s an apt term.