Jul 30 2012
Pennsylvania Commonwealth Court’s Decision in Robinson Township v. Commonwealth: Like Oil and Water, Fracking and Zoning Don’t Easily Mix (Part I)
On July 26, 2012, the Pennsylvania Commonwealth Court issued its decision in Robinson Township et al. v. Commonwealth of Pennsylvania, No. 284 MD 2012 (available at http://www.pacourts.us/OpPosting/Cwealth/out/284MD12_7-26-12.pdf.) The headline take-away from the decision is that the Commonwealth Court struck down as unconstitutional those provisions of Pennsylvania’s Oil and Gas Act that mandated changes in local municipal zoning ordinances to allow oil and gas (primarily Marcellus Shale natural gas) drilling. In this series of blog posts, I would like to explore the decision at a deeper level.
On February 14, 2012, Pennsylvania Governor Tom Corbett signed into law a fundamental re-write of Pennsylvania’s Oil and Gas Act in what was also known as Act 13. 58 P.a. C.S. §§ 2301- 3504. The Commonwealth Court described Act 13 as follows:
Act 13 repealed Pennsylvania’s Oil and Gas Act and replaced it with a codified statutory framework regulating oil and gas operations in the Commonwealth. Among other provisions involving the levying and distribution of impact fees and the regulation of the operation of gas wells, Act 13 preempts local regulation, including environmental laws and zoning code provisions except in limited instances regarding setbacks in certain areas involving oil and gas operations.
Opinion at 2-3. On March 12, 2012, Petitioners—consisting of seven municipalities (6 townships and one Borough), two Supervisors from different Petitioner townships suing in their individual and official capacities, the Delaware Riverkeeper Network and the Delaware Riverkeeper herself, and one doctor (Dr. Kahn)—filed a petition for review in the nature of a complaint for declaratory judgment and injunctive relief in this Court’s original jurisdiction challenging the constitutionality of Act 13. The Court described the claims in the Petition for Review as follows:
In response to the passage of the Act, Petitioners filed a 12-count petition for review alleging that Act 13 violates:
*Article 1 §1 of the Pennsylvania Constitution and §1 of the 14th Amendment to the U.S. Constitution as an improper exercise of the Commonwealth’s police power that is not designed to protect the health, safety, morals and public welfare of the citizens of Pennsylvania; (Count I)
*Article 1 §1 of the Pennsylvania Constitution because it allows for incompatible uses in like zoning districts in derogation of municipalities’ comprehensive zoning plans and constitutes an unconstitutional use of zoning districts; (Count II)
*Article 1 §1 of the Pennsylvania Constitution because it is impossible for municipalities to create new or to follow existing comprehensive plans, zoning ordinances or zoning districts that protect the health, safety, morals and welfare of citizens and to provide for orderly development of the community in violation of the MPC [Municipal Planning Code, 53 P.S. §§10101 – 11202] resulting in an improper use of its police power; (Count III)
*Article 3 §32 of the Pennsylvania Constitution because Act 13 is a “special law” that treats local governments differently and was enacted for the sole and unique benefit of the oil and gas industry; (Count IV)
*Article 1 §§1 and 10 of the Pennsylvania Constitution because it is an unconstitutional taking for private purposes and an improper exercise of the Commonwealth’s eminent domain power; (Count V)
*Article 1 §27 of the Pennsylvania Constitution because it denies municipalities the ability to carry out their constitutional obligation to protect public natural resources; (Count VI)
*the doctrine of Separation of Powers because it entrusts an Executive agency, the Commission, with the power to render opinions regarding the constitutionality of Legislative enactments, infringing on a judicial function; (Count VII)
*Act 13 unconstitutionally delegates power to the Pennsylvania Department of Environmental Protection (DEP) without any definitive standards or authorizing language; (Count VIII)
*Act 13 is unconstitutionally vague because its setback provisions and requirements for municipalities fail to provide the necessary information regarding what actions of a municipality are prohibited; (Count IX)
*Act 13 is unconstitutionally vague because its timing and permitting requirements for municipalities fail to provide the necessary information regarding what actions of a municipality are prohibited; (Count X)
*Act 13 is an unconstitutional “special law” in violation of Article 3, §32 of the Pennsylvania Constitution because it restricts health professionals’ ability to disclose critical diagnostic information when dealing solely with information deemed proprietary by the natural gas industry while other industries under the federal Occupational and Safety Act have to list the toxicity of each chemical constituent that makes up the product and their adverse health effects; (Count XI) (Dr. Khan is the only petitioner bringing this claim.)
*Article 3, §3 of the Pennsylvania Constitution prohibition against a “bill” having more than a single subject because restricting health professionals’ ability to disclose critical diagnostic information is a different subject than the regulation of oil and gas operations; (Count XII) (Dr. Khan is the only petitioner bringing this claim.)
Opinion at 5-7. In response to the Petition, the Respondents—consisting of the Commonwealth of Pennsylvania, the Public Utility Commission and its chair, the Department of Environmental Protection and its Secretary, and the Attorney General of Pennsylvania—filed preliminary objections to the Petition. Both the Petitioners and Respondents filed cross-motions for summary relief (in the form of judgment in their favor). Thus, the Commonwealth Court had before it the Preliminary Objections and the motions for summary relief.
The Opinion can be broken down into two main parts: (1) A discussion of issues of Standing (Opinion at 8-21) and Justiciability based on the political question doctrine (Opinion at 22-24); and a discussion of the merits of the claims (opinion at 25-54). In summary, the majority of the Court:
* Found that the municipal petitioners and municipal officers had standing (apparently both in their individual and official capacities), while the Riverkeeper Network, Riverkeeper, and individual doctor did not (the Riverkeepers for lack of proof, while Dr. Kahn might have it in the future);
* That the political question doctrine did not prevent the Court from considering the constitutionality of the Act;
* Overruled the Preliminary Objections on Counts I, II, III, and VIII, and granted the Petitioners request for summary relief on those counts, declaring the provisions challenged in those counts (58 Pa. C.S. §§ 3215(b)(4) and 3304) and to be “null and void” (Opinion at 53) and permanently enjoined the Commonwealth from enforcing the provisions of § 3304 and any other provision in Chapter 33 of the Act which enforces the provisions of § 3304; and
* Sustained the Preliminary Objections on Counts IV, V, VI, VII, IX, X, XI, and XII, and thereby dismissing those claims.
Judge Brobson, joined by Judges Simpson and Covey, filed a separate opinion concurring in part and dissenting in part. They concurred with the majority’s analysis on standing and justiciability and on the ruling concerning Count VIII (invalidating 58 Pa. C.S. § 3215(b)(4)) but dissenting as to the ruling on Count I – III (invalidating 58 Pa. C.S. § 3304).
Governor Corbett has announced that the Commonwealth will appeal the decision.
In summary, the ruling means that:
(1) Section 3304—which mandated changes to local zoning ordinances that would require municipalities to change their ordinances to allow oil and gas drilling in all zoning districts and adopt certain required provisions or else risk losing access to impact fees that gas companies will pay to the state—is null and void. Thus, municipalities can still regulate the location of gas drilling activities via zoning.
(2) Section 3215(b)(4)—which granted the DEP the authority to waive certain setback requirements is null and void. Thus, the setbacks set forth in the statute cannot be waived.
(3) The Court’s analysis of the other issues—standing, political question doctrine, and the arguments behind the other counts that were dismissed—may have broader legal implications.
I will explore the first of these summary conclusions in more detail in Part II of this blog post, the second in Part III, and the third in Part IV.