Utica, Marcellus shale in Pa: Supreme Court makes historic ruling

HARRISBURG, Pa. — The Pennsylvania Supreme Court made a decision Dec. 19 that could impact all shale drilling operations in Pennsylvania.

Act 13

In a four to two decision, the Pennsylvania Supreme Court affirmed a 2012 Commonwealth Court decision striking down controversial portions of Act 13, under the Pennsylvania Constitution.

Robinson Township, Cecil Township, Mount Pleasant Township and Peters Township in Washington County, Nockamixon Township and Borough of Yardley in Bucks County, as well as, South Fayette in Allegheny County were all plaintiffs in the court case.

Most notably, the court struck down parts of Act 13 that would have created a statewide zoning scheme for oil and gas activities, and required municipalities to allow those activities in all zoning districts, including residential districts.

Under Act 13 as written, gas exploration and extraction could be done anywhere in the state.
The state supreme court ruled that municipalities have the rights to make zoning regulations regarding oil and gas activities.

Attorney Jordan Yeager, of the law firm, Curtin and Heefner, represented local governments who challenged Act 13.

The seven initial communities challenged Act 13 but dozens of communities around the state joined in the fight.

Control

Yeager said under Act 13, it allowed drilling, compressor stations and all other gas related activity anywhere in the state. He said the decision gives the control back to the communities.

“It maintains the community’s ability to decide where it can happen and where it can’t. You can’t put farms wherever you want, and you shouldn’t be able to do that with gas activity either,” said Yeager.

Protecting resources

PennFuture, a statewide public interest membership organization, helps in litigating cases before regulatory bodies and assisting citizens in public advocacy. The organization opposed Act 13 because of the issues relating to local preemption raised by Pa. Supreme Court Chief Justice Ronald D. Castille, insufficient regulatory safeguards to protect natural resources and communities, and an inadequate impact fee.

PIOGA not happy

However, the Pennsylvania Independent Oil and Gas Association stated they disagree with the decision by the state supreme court regarding the constitutionality of provisions of Act 13.

“…  We expect those partnerships will continue, regardless of this decision, and will continue to work in a productive and open manner with those governments and their constituents to safely develop our energy resources and support the Commonwealth’s economy. We are concerned, however, with those municipalities which have been unwilling to develop relationships with the industry, and the future damage that will be done to the rights and property of the industry, as well as the rights those property owners within those municipalities wishing to benefit from the development of natural gas on their land,” said PIOGA President and Executive Director Louis D. D’Amico.

He added that PIOGA has serious concerns about the uncertainty that will be created by the ruling on investment in natural gas development in Pennsylvania.

D’Amico said there is concern that companies wanting to make significant capital investment will leave Pennsylvania for other states with greater clarity in their regulatory policies.

Constitution

The plaintiffs attacked Act 13 on several Constitutional grounds – among other things, that these sections violated “substantive due process” and violated  Article I, Section 27, the so-called “Environmental Rights Amendment.”

The Commonwealth Court struck down Act 13’s statewide zoning scheme as a violation of substantive due process, a concept that requires that statutes have legitimate public purposes and strike a reasonable balance between benefiting the public and impinging on individual rights.

Three justices on the supreme court found that the statewide, gas-activities-everywhere zoning scheme violated Article I, Section 27. (In a concurring opinion, one justice found that the overriding of local zoning regulation was an unconstitutional violation of substantive due process).

Ruling

The ruling struck down Sections 3215(b)(4), 3303, and 3304 of Act 13. Section 3215(b)(4) required the Department of Environmental Protection (DEP) to waive setbacks for drilling activities from waterbodies as long as an operator submitted a plan showing that those waterbodies would be protected. Section 3303 established statewide rules for oil and gas activities irrespective of existing or future local zoning rules. Section 3304 required municipalities to allow oil and gas development activities in all zoning areas.

Chief Justice Castille said in his opinion the environmental rights amendment guarantees each citizen the right to “clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.”

Those environmental rights are “presumptively on par” with other civil liberties found in Article I’s Declaration of Rights, writes Castille, and the fact that the constitution declares them “inviolate necessarily implies that economic development cannot take place at the expense of an unreasonable degradation of the environment.”

Environmental impact

Noting Pennsylvania’s history of resource exploitation, Castille largely rejects past decisions applying Article I, Section 27 of Act 13 as ignoring the plain language of the amendment, and replaces it with an invigorated analysis giving real meaning to the “public trust doctrine.”

This doctrine emphasizes that the government must reasonably exercise its powers in a manner that considers the environmental impact of its actions, both on present and future generations, and that it cannot take actions that improperly burden the trust, namely, our environment, in a way that works a harm on the citizens of Pennsylvania.

The rights given by Article I, Section 27 are “neither meaningless nor merely aspirational,” Castille wrote, and “when government acts, the action must, on balance, reasonably account for the environmental features of the affected locale….”