• Beyond the Shale - Zoning Implications for Municipalities: Robinson Township, et. al v. Commonwealth of Pennsylvania
  • January 15, 2014 | Author: David A. Nasatir
  • Law Firm: Obermayer Rebmann Maxwell & Hippel LLP - Philadelphia Office
  • Much has been made of the Pennsylvania Supreme Court’s recent decision in Robinson Township, et. al v. Commonwealth of Pennsylvania as it relates to Marcellus Shale and who - the Commonwealth or the local municipality - can regulate the drilling for such shale. However, it is extremely important to realize that the Court’s decision has wide ranging impact on how land development can be regulated throughout Pennsylvania.

    As a result of this recently issued decision, local municipalities retain the right to regulate and permit or prohibit oil and gas operations. Though Act 13 amended the Pennsylvania Oil and Gas Act by: creating statewide (rather than local) regulation of oil and gas operations, permitting industrial uses in all zoning districts regardless of prior regulations of municipalities, and requiring the Department of Environmental Protection to waive well permit and setback requirements, the Robinson Township decision rejected these changes, and squarely put control of land development regulation back into the hands of municipalities.

    The plaintiffs argued that the government infringed upon citizens’ rights by enacting Act 13, arguing that Act 13 was essentially an unconstitutional exercise of police powers by the Commonwealth and that its provisions violated the environmental rights of citizens in the Commonwealth. With respect to the environment, Pennsylvania’s plenary police power must be exercised in a manner that promotes sustainable property use and economic development.

    Specifically, the one section of Act 13 at issue was Section 3303, which states that “environmental acts are of Statewide concern and, to the extent that they regulate oil and gas operations, occupy the entire field of regulation, to the exclusion of all local ordinances.” Citizens and municipalities alike challenged this Section as unconstitutional.

    Subsequent sections of Act 13 also restricted local governments from regulating or involvement in oil and gas mining and required local governments to permit such mining operations. For instance, Section 3304 permitted industrial oil and gas operations as a use “of right” in every zoning district throughout the Commonwealth. Act 13 purported to trump all existing zoning codes and permit industrial uses in all localities within the Commonwealth, in addition to levying fines for local governments who failed to comply with these requirements.

    In a lengthy and detailed opinion, the Supreme Court found that Act 13 could not:

    • restrict the powers of local municipalities to regulate oil and gas operations within their borders in the best interest of the environment and the residents;

    • authorize industrial uses, such as oil and gas operations, in all localities in the Commonwealth in opposition to local zoning regulations; and

    • require the Department of Environmental Protection to waive requirements for well permits and setbacks.

    Such rights are limited, however, by several remaining sections of Act 13 that were not deemed unconstitutional. For instance, zoning ordinances developed by municipalities cannot be trumped by Commonwealth statutes seeking to universally override previously established prohibitions or requirements in local zoning districts. The Supreme Court’s recognition of a successful challenge brought under the Environmental Rights Amendment is also important because this opens the door for future challenges outside the oil and gas industry on the basis of environmental rights of citizens.

    Lastly, the Commonwealth, in an extraordinary action, has just asked the Supreme Court to reconsider its holding in this case - so stay tuned, as this battle may not be over.