Last week, the Pennsylvania Supreme Court struck down a state law that required municipalities to permit oil and gas drilling in all zoning districts, including those designated exclusively for residential use.  In a 4 to 2 decision, the court determined that Act 13, which prohibited cities and towns from banning fracking projects within their borders, was unconstitutional.  The decision could have substantial implications for hydraulic fracturing operations within the state.

Passed in 2012, Act 13 was intended to modernize Pennsylvania’s drilling laws and capitalize on the current fracking boom in the state. The suit, known as Robinson Township et al. v. Commonwealth of Pennsylvania et al., was initiated by seven municipalities and number of environmental groups soon after Governor Tom Corbett signed Act 13 into law.  That same year, a Commonwealth Court, sitting en banc, ruled the law was unconstitutional, because it violated Pennsylvanians’ substantive due process rights.  The state subsequently appealed.

Unlike the lower court, the state’s high court chose not to rest its decision on due process grounds.  Instead, the court found Act 13 violated the Environmental Rights Amendment of the commonwealth’s constitution, which guarantees state citizens the right to a healthy environment.  Writing on behalf of the majority, Chief Justice Ronald D. Castille concluded that the law represented “a direct and harmful degradation of the environmental quality of life in [Pennsylvania’s] communities and zoning districts.”

The decision also invalidated portions of the law that regulated where new wells could be drilled as well as a provision that required the state’s Department of Energy Protection to waive setback requirements for new wells when energy developers applied for drilling permits.  In so doing, the opinion calls into question the extent to which the state can regulate oil and gas development within the commonwealth.

Writing in dissent, Justice J. Michael Eakin argued that the majority’s findings will encourage unnecessary litigation.  He contended, “Giving standing to some 2,500 sets of local officials to sue the sovereign based on alleged violations of individual constitutional rights is misguided, and will have precedential repercussions — I fear we will soon face a tide of mischief that will flow from such an ill-advised notion.”

The North American Shale Blog team will continue to monitor the impact of this decision and report new developments.

Resources

Robinson Twp. et al. v. Commonwealth of Pennsylvania et al.

Pa. High Court Bombshell Could Reach Beyond Fracking

Pennsylvania Supreme Court Strikes Part of Industry-Friendly Fracking Law