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.
Photo courtesy of marcellusprotest.org
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.”
