The Pennsylvania Supreme Court last week struck down provisions of a state law known as Act 13, ruling that municipalities retain the right to enact stricter zoning controls on the oil and gas industry than those established by Act 13. This decision could prompt the General Assembly to explore revisiting the law.
The provisions at issue in Robinson Township v. Commonwealth were intended to create a uniform system for the siting of oil and gas wells and related infrastructure across Pennsylvania. This uniform system would in turn offer certainty to the oil and gas industry so that it would encounter the same land use rules regardless of where it sought to do business. The court, in a 4-2 decision, affirmed the Commonwealth court’s 2012 ruling that the provisions are unconstitutional, but the plurality opinion relies on different constitutional grounds than those cited by the lower court.
The plurality principally relied upon Article I, Section 27 of the Pennsylvania Constitution, known as the Environmental Rights Amendment (ERA). Until the decision in Robinson Township, the Supreme Court had never used the ERA to strike down a law on the ground that implementation of that law could effectively deprive Pennsylvanians of “environmental rights” such as the right to clean air or clean water. Previously, the ERA had been the subject of case law only in the context of justifying legislative and executive initiatives meant to add substance to the rights guaranteed by the ERA.
The court here noted that the ERA vests in the people of the Commonwealth a right to a clean and preserved environment, and that the corollary of this right is the government’s obligation to “refrain from unduly infringing upon or violating the right.” The court acknowledged that while this principle is not absolute, it found that “when the government acts, the act must, on balance, reasonably account for the environmental features of the affected locale . . . if it is to pass constitutional muster.”
Finding that the public trust clause of the ERA makes the Commonwealth, including local municipalities, trustees of an environmental public trust, the court reasoned that requiring municipalities to follow the new provisions would cause them to abdicate their respective roles as trustees. The court further concluded that such a role includes the ability to limit oil and gas development as needed to protect public natural resources such as surface and ground water and air. The court also noted that by enacting Act 13, the General Assembly itself failed to meet its obligation as public trustee by allowing an industrial use as a matter of right in every type of zoning district.
Although municipalities will regain some ability to control siting of oil and gas facilities within their borders, this authority is not absolute. Before Act 13, municipalities could not ban such activities. Moreover, municipal authority to regulate oil and gas activities has been, and is likely to continue to be, preempted to the extent an ordinance seeks to control aspects of the activity already traditionally regulated by the Pennsylvania Department of Environmental Protection (DEP).
For example, under existing law, a municipality may be able to limit oil and gas operations in certain areas, but it could not require well casings to be designed or constructed, or waste water to be handled, differently than required by the DEP. Nevertheless, beyond the context of oil and gas development, the opinion’s establishment of “environmental rights jurisprudence” under the Pennsylvania Constitution may allow municipalities to enact stricter environmental-related zoning ordinances in general. Further, the decision could spawn a new generation of environmental claims asserting that land use and zoning decisions are unlawful because the decision makers did not validate their responsibilities as trustees of the environment in making such decisions.
As for the decision’s impact on the oil and gas industry, it was apparent that the law before Act 13 did not necessarily slow the industry’s development of Pennsylvania’s vast natural gas resources. To be sure, it will be more difficult for the industry to operate in some communities, but overall the current (low) price of natural gas, somewhat slack demand for the resource, and the lack of necessary infrastructure to get it to market ultimately makes the court’s decision just one of several factors driving the industry’s decisions regarding whether and where to drill.
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Copyright © 2013 by Ballard Spahr LLP.
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