On December 19, 2013 the Pennsylvania Supreme Court struck down core provisions of Act 13 of 2012, a series of amendments to the Pennsylvania Oil and Gas Act, in a sweeping decision that holds implications much broader than its practical effects. The amendments at issue in the decision, Robinson Township v. Commonwealth, preempted local zoning laws concerning Marcellus Shale development. The court determined that these amendments were inconsistent with the protectoral duties imposed by the state constitution’s Environmental Rights Amendment and were thus unconstitutional. Robinson Township effectively decreed that shale development is at odds with environmental conservation and, as such, zoning provisions that promote shale development violate the Pennsylvania Constitution.
As a result of the decision, the zoning authority that municipalities held before the 2012 amendments will be restored, echoing past years of Marcellus development. Municipalities will once again be permitted to enforce existing zoning ordinances pertaining to oil and gas activity and, naturally, enact new ones. In other words, the practical effect of Robinson Township will more or less be a return to “business as usual.”
The significance of the decision, however, lies in the unprecedented rationale displayed by the Pennsylvania Supreme Court. While the central argument advanced in opposition to Act 13 was, summarily, that the Commonwealth exceeded the constitutional parameters of its police power by “removing protections created by existing zoning districts and replacing them with a zoning scheme that is inconsistent with constitutional mandates generally imposed on any legislative zoning effort,” the court chose to emphasize and expand upon a lesser aspect of the opposition’s argument, The Environmental Rights Amendment. Indeed, the court itself acknowledged that the Environmental Rights Amendment argument had not been developed as extensively as the opposition’s due process and separation of powers arguments. Notwithstanding this fact, the court chose to develop this argument. What is perhaps even more surprising about the court’s choice for the decision’s grounding point of law is the fact that Pennsylvania courts have never addressed the Environmental Rights Amendment in this manner.
Nothing in the text of the Amendment suggests the broad application chosen by the court. Found in Article I Section 27 of the Pennsylvania Constitution, the amendment states:
“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.”
Because jurisprudence regarding the amendment has been generally limited, and its language has not heretofore been construed in order to limit the Commonwealth’s police power, the high court seemingly opened the floodgates with the decision to broadly apply Section 27. The court held that the provisions of Act 13 establishing statewide uniform zoning laws were unconstitutional because they violated the Commonwealth’s duty as trustee of Pennsylvania’s public natural resources. According to the decision, the Commonwealth is obligated to refrain from permitting degradation of resources whether by state or private action and to actively protect the environment via legislation.
There are two significant implications to be drawn from Robinson Township. First, the unprecedented and sweeping nature of the court’s application of the Environmental Rights Amendment may open the door for a new breed of challenges to legislation. Of course, extensive environmental scrutiny will particularly affect the oil and gas industry. This is especially so given the fact that the court has unabashedly adopted controversial, if not radical, conceptions about the nature of shale development and its purported deleterious environmental consequences. If, as the court suggests, shale development is by default an affront to environmental sanctity, then there may conceivably be no limit to the challenges that may be brought under Section 27 against laws that foster the development of Pennsylvania’s resources.
Secondly, the court’s unfavorable stance toward shale development combined with a willingness to craft an unprecedented and broad rationale in order to invalidate the Act 13 provisions may signal a future of judicial combativeness toward pro-development legislation. The policy underlying Robinson Township is a sharp contrast to that which has driven the General Assembly’s recent oil and gas legislation. Much of Pennsylvania’s latest legislation undeniably favors the oil and gas industry, arguably to the detriment of other interested parties. With Pennsylvania’s high court and General Assembly seemingly at odds, the oil and gas industry may have a reason to tread more lightly when it comes to new development.
Posted Feb. 10, 2014