|March 11, 2014|
Previously published on March 6, 2014
The Pennsylvania Supreme Court has declined to reconsider its December 19, 2013 decision in which it declared as unconstitutional several aspects of a state law aimed at gas and oil development.
In December, in an 160+ page opinion written by Chief Justice Castille, the court invalidated Act 13, which had made sweeping changes to the state’s Oil and Gas Act.
The original challenges were made by, among others, municipalities and persons with property within Pennsylvania’s Marcellus Shale. Because Act 13 preempted local zoning laws as they relate to oil and gas drilling and exploration, they argued that the law had removed any meaningful opportunity on the part of local governments to evaluate and react to the potential environmental impacts caused by the significant new gas and oil drilling in the state.
Act 13 required local governments to (a) authorize oil and gas operations as “permitted uses” throughout the locality, and (b) authorize natural gas compressor stations in agricultural and industrial uses, and as “conditional uses” in all other zones, including residential areas. The Act also prohibited local governments from (i) establishing hours of operation for drilling, well operation, or compressor or processing plants, and (ii) establishing setbacks greater than set forth in the Act.
The state argued that the Act, while comprehensive in its changes to the state’s oil and gas laws, was a necessary response to the state’s vast natural gas reserves and to ensure uniform development and regulation throughout the state. The state argued that municipalities are creatures of statute, and thus the legislature is free to make changes impacting municipalities, including changes that preempt local zoning laws.
The municipalities and citizens argued that the law violated the Environmental Rights Amendment (Section 27) of the state constitution, which provides that the state shall act as “trustee” in protecting the citizen’s right to “clean air, pure air, and to the preservation of the natural, scenic, historic and esthetic values of the environment.”
The court agreed. In setting aside the Act’s provisions, the court held that citizens had a constitutionally protected expectation and right to a clean environment and in raising families in residential areas, and that the state’s power, while broad, does not encompass such authority to so “fundamentally” disrupt these expectations.
Two justices filed dissents. The dissenting justices found that the majority broke with precedent that has consistently recognized that municipalities are creatures of the legislature and that local regulations must bow to the sovereign. The justices also expressed strong reservations about the decision’s potential to be interpreted as giving municipalities the ability to enforce individual constitutional rights. It is a “fundamental precept of constitutional law that the Constitution assures the rights of individuals, not governments. Giving standing to some 2,500 sets of local officials to sue the sovereign based on alleged violations of individual constitutional rights is misguided,” the justices wrote in December.
In a one sentence statement, the court denied the state’s request for reconsideration.