Monday, December 23, 2013

It's About Time!

By Thomas Y. Au, PA Chapter Conservation Chair

The Pennsylvania Supreme Court Finally Rules that Oil and Gas Act is Unconstitutional. 

Municipal governments have a role to play in regulating oil and gas drilling, according to the Pennsylvania Supreme Court, which declared the state’s pre-emption of that role to be unconstitutional.

In 1971, Pennsylvania voters adopted an amendment to the Pennsylvania Constitution, which simply stated:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.
This amendment, Article 1, Section 27 of the Pennsylvania Constitution, became known as the Environmental Rights Amendment.  However, for decades, Pennsylvania's legislature and courts have all but ignored the text of this amendment, giving it lip service when enacting legislation, but scarcely balancing the natural, scenic, historic, and aesthetic values of the environment with the demands of industrial development.  The Environmental Rights Amendment was almost never used to weigh impending industrial development.

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In commenting on the decision, the Patriot-News editorial (Dec. 22) made this wry observation: "But the hope here is that it marks a new day in Pennsylvania, delivering an enduring reminder to legislators and the governor: As you're being schmoozed by lobbyists and lavished with campaign contributions from powerful industries that want special treatment, there's a limit on how far you can go to please them, because the Pennsylvania Constitution has an Environmental Rights Amendment."

When the General Assembly enacted Act 13 in 2012, it was in response to the rapid and intensive development of Marcellus Shale gas drilling.  The law was intended to foster, rather than limit, shale gas development by, among other things, limiting the role of municipal governments in reviewing and regulating shale gas operations in their municipalities.  The law specifically stated that the state government intended to pre-empt all local ordinances regulating oil and gas development. (The Commonwealth, by this section, preempts and supersedes the regulation of oil and gas operations as provided in this chapter."  58 Pa.C.S. Section 3302)

When the Commonwealth Court heard the challenge from Robinson Township and other municipalities after the enactment of the Oil and Gas Act in 2012, the court found: "By requiring municipalities to violate their comprehensive plans for growth and development, 58 Pa.C.S. §3304 violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications — irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height of structures, screening and fencing, lighting and noise."

This set the stage for an appeal by the state, the PUC, and the oil and gas industry to the Pennsylvania Supreme Court.  On Dec. 19, 2013, the court issued its decision.

Pennsylvania’s history, Chief Justice Castille wrote, includes massive deforestation, the loss of wildlife, and industrialization and coal mining. “It is not a historical accident that the Pennsylvania Constitution now places citizens’ environmental rights on par with their political rights,” the plurality said.   Constitutional provisions, he pointed out, are to be interpreted based on “the mischief to be remedied and the object to be attained.” 

Chief Justice Castille applied this analysis to Sections 3303, 3304, and 3215(b)(4): 
Section 3303, which pre-empted local regulation of oil and gas operations, violates Article I, Section 27 “because the General Assembly has no authority to remove a political subdivision’s implicitly necessary authority to carry into effect its constitutional duties.”  The Commonwealth is the trustee under the amendment, which means that local governments are among the trustees with constitutional responsibilities.  

Section 3304, which requires “all local ordinances” to “allow for the reasonable development of oil and gas resources” and imposes uniform rules for oil and gas regulation, violates Article I, Section 27 for two reasons.  “First, a new regulatory regime permitting industrial uses as a matter of right in every type of pre-existing zoning district [including residential] is incapable of conserving or maintaining the constitutionally-protected aspects of the public environment and of a certain quality of life.”   Second, under Act 13 “some properties and communities will carry much heavier environmental and habitability burdens than others.”  This result is inconsistent with the obligation that the trustee acts for the benefit of “all the people.” 

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