Jul 31 2012
Pennsylvania Commonwealth Court’s Decision in Robinson Township v. Commonwealth: Like Oil and Water, Fracking and Zoning Don’t Easily Mix (Parts III and IV)
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.) In Part I of this series of blog posts, I discussed the background and general aspects of the decision; in Part II, the nullification of § 3304’s requirements concerning local zoning regulation of gas and oil drilling. In Part III, I will discuss aspect of the decision nullifying DEP’s power to waive setbacks, while in Part IV, I will discuss the opinion’s analysis of standing, political question doctrine, and the counts the Court dismissed.
Part III: Limiting DEP Waivers
Section 3215(b) of Act 13 imposes certain setback restrictions on the location of oil and gas wells: 100 feet from any stream shown on US Geological Surveys (300 feet for fracking wells) and 300 feet from wetlands. In subsection (b)(4), the section states in part that “The department shall waive the distance restrictions upon submission of a plan identifying additional measures, facilities or practices to be employed during well site construction, drilling and operations necessary to protect the waters of this Commonwealth.” The Petitioners challenged this waiver provision on the grounds that, as the Court described it, the section “violates the basic principles that the legislation must contain adequate standards that will guide and restrain the exercise of the delegated administrative functions because the statutory language fails to contain adequate standards or constrains DEP’s discretion when it administers mandatory waivers from water body and wetland setbacks.” Opinion at 46.
The Court unanimously agreed with the Petitioners. It recognized that the legislature “may confer authority and discretion upon another body in connection with the execution of a law but that ‘legislation must contain adequate standards which will guide and restrain the exercise of the delegated administrative functions.’” Opinion at 48 (quoting Eagle Envlt. II, L.P. v. Commonwealth, 884 A.2d 867, 880 (2005) (emphasis added by Court). The Court summarized its conclusion this way: “In authorizing a waiver, Section 3215(b)(4) gives no guidance to DEP that guide and constrain its discretion to decide to waive the distance requirements from water body and wetland setbacks . . . Given the lack of guiding principles as to how DEP is to judge operator submissions, Section 3215(b)(4) delegates the authority to DEP to disregard the other subsections and allow setbacks as close to the water source it deems feasible. Because the General Assembly gives no guidance when the other subsections may be waived, Section 3215(b)(4) is unconstitutional because it gives DEP the power to make legislative policy judgments otherwise reserved for the General Assembly.” Opinion at 51-52. The Court did, however, recognize the ability of the General Assembly to fix this problem by “subsequent amendment that provides sufficient standards.” Opinion at 52.
The Court’s decision makes sense given the statutory language involved. A literal reading of § 3215(b)(4) mandates a waiver (“the department shall waive”) whenever a plan is submitted—regardless of how inadequate the plan may be. Coupled with the fact that the section grants DEP only an additional 15 days of review (on top of the mere 45 days granted for review of a permit application—see § 3211(e)), one could at least question whether DEP could exercise any meaningful review of the “additional plans” in any event. This might be another example of overreach by the Act’s authors seeking to make the process easy for drilling companies.
Part IV: Standing, Political Question, and the Dismissed Counts
In order to get to the merits of the 12 Counts, the Court first had to deal with two Preliminary Objections designed to throw the case out before a consideration on the merits: standing and the political question doctrine. Both Preliminary Objections failed.
Standing – The Respondents challenged the standing of all Petitioners. The Court recognized that standing in Pennsylvania is not a jurisdictional prerequisite (like in federal courts), but rather a “flexible rule of law” resulting in Pennsylvania courts being “much more expansive in finding standing than their federal counterparts.” Opinion at 9. The Court cites the usual test for standing in Pennsylvania (the “direct, immediate, and substantial” test, see Opinion at 9-10), but notes that “there have been a number of cases that have granted standing to parties who otherwise failed to meet this test,” Opinion at 10, including some involving taxpayers and public officials. The Court found standing for the municipal petitioners because they satisfied the direct, immediate and substantial test in that § 3304 required municipalities to change their zoning codes to comply with the Act. The Court found the public officials to have standing without invocation of the test, finding that they were subject to liability and would be required to vote for the zoning changes, as well as individual property owners who live in residential districts where drilling could now occur and thus “will not be able to rely on the fact that their next-door neighbor will not use his or her property for an industrial activity that will serve to immediately devalue their properties.” Opinion at 16. The Court found no standing for the Delaware Riverkeeper Network and the Delaware Riverkeeper because there was no proof of direct, immediate and substantial injury directly or to Network members. Opinion at 17 – 18. The Court found no standing for Dr. Kahn—a medical doctor who was challenging the provisions of Act 13 which restricted the ability of health care officials to use chemical information about fracking fluids—because he had not yet had information disclosed to him that the confidentiality provisions restricted him. In other words, Dr. Kahn does not have standing now, but would in the future.
Political Question Doctrine – The Commonwealth argued that the Petitioners’ claims should be barred because they involve non-justiciable political questions best left to the Legislature so that, as the Court characterized the argument, “If Petitioners are unhappy with the changes the Legislature has made in enacting Act 13, they should proceed through the political process and not ask this Court to nullify policy determinations that were made pursuant to the Constitution and for which there are no manageable standards for the judiciary to assess the merit of the determinations made by the Legislature.” Opinion at 23. The Court rejected the Respondents’ argument because it thought it went too far: “Under the Commonwealth’s reasoning, any action that the General Assembly would take under the police power would not be subject to a constitutional challenge. For example, if the General Assembly decided under the police power that to prevent crime, no one was allowed to own any kind of gun, the courts would be precluded to hear a challenge that the Act is unconstitutional under Art. 1, §21 of the Pennsylvania Constitution, which provides, ‘The right of the citizens to bear arms in defence of themselves and the State shall not be questioned.’ Nothing in this case involves making a determination that would intrude upon a legislative determination or, for that matter, require the General Assembly to enact any legislation to implement any potential adverse order; what we are asked to do is to determine whether a portion of Act 13 is constitutional or not, a judicial function. Because we are not required to make any specific legislative policy determinations in order to come to a resolution of the matters before us, the issue of whether Act 13 violates the Pennsylvania Constitution is a justiciable question for this Court to resolve.” Opinion at 23-24.
Dismissed Counts – The Court dismissed Counts IV – VII and IX – XII and provided reasons for most. Count IV—asserting that Act 13 was an unconstitutional “special law” designed to favor the oil and gas industry for zoning purposes—was rejected because the distinction had legitimate reasons behind it. Opinion at 38. Count V—challenging a provision of Act 13 allowing private gas companies to use eminent domain to seize land for underground gas storage (see § 3241(a)) as an unconstitutional taking—was rejected because no Petitioners’ land had been seized (basically a lack of ripeness) and a seizure could be challenged once it occurred. Opinion at 40. Count VI—challenging the Act as interfering with public trust responsibilities over natural resources imposed by Article I, § 27 of the Pennsylvania Constitution—was rejected because § 3303 was read to mean that “all local obligation or power to deal with the environment was preempted because Chapter 32 occupied “the entire field to the exclusion of all local ordinances” and therefore the municipal petitioners could not state a claim. Opinion at 43. Count VII—challenging the provisions of the Act allowing the Public Utility Commission to render decisions on whether local ordinances complied with the Act as a separation of powers violation—was rejected because the opinions were only advisory (with de novo court review available). Opinion at 46. Counts IX and X—challenges based on the vagueness of the Act—were rejected because the court found the expressed standards to be adequate (excluding, of course, § 3215(b)(4)). Opinion at 53. Counts XI and XII—challenges based on the restrictions on doctors’ use of confidential information—were not discussed but presumably rejected because Dr. Kahn (the only petitioner challenging those provisions) had already been found not to have standing.
The standing analysis provides some potential new avenues for plaintiffs/petitioners seeking their day in court. The stated grounds for standing despite failing the “direct, immediate, and substantial” test may be useful to those needing to establish standing in the future. As the ruling on Delaware Riverkeeper Network and the Riverkeeper shows, however, plaintiffs will still need some proof.
The Court was rightly skeptical of the political question argument because it seeks to restrict judicial review in a manner that fundamentally makes no sense. There is some irony in the Court using a gun control example against a law passed by a Republican majority legislature and signed by a Republican Governor.
From the dismissed counts, the ruling on Count VI (the challenge based on the public trust provision of the Pa Constitution) is perhaps the most interesting. Indeed, the Commonwealth tried to argue that its public trust obligations under that provision was the basis for application of the political question doctrine—an argument the Court found wanting because it did not void out basic judicial review. One might question whether facilitating the exploitation of oil and gas resources is in fact a proper exercise of a public trustee’s duties. In addition, the fact that the Court used § 3303 in reaching its decision may (or may not) have some significance for the vitality of that section.