May 23 2014

Widener Issues White Paper on Robinson Township Case

Published by under Environmental Policy

Widener’s Environmental Law Center has issued a white paper on the Pennsylvania Supreme Court’s December 19, 2013 decision in Robinson Township v. Commonwealth.   In this case, the Pennsylvania Supreme Court held unconstitutional major parts of Pennsylvania’s “Act 13”—a 2012 oil and gas law designed to facilitate the development of natural gas from Marcellus Shale. In so doing, the Court breathed new life into Article I, Section 27 of Pennsylvania’s constitution, which creates public rights in certain environmental amenities and requires the state to “conserve and maintain” public resources “for the benefit of all the people.” The wide-ranging implications of this decision will be felt for years, perhaps decades.

The White Paper – coauthored by Widener law professors John Dernbach, James May, and Ken Kristl at the Widener University School of Law – does three things. First, it provides a brief introduction to the three players in this drama – Article I, Section 27, the Pennsylvania’s Environmental Rights Amendment; Act 13, and the lower court decision in Robinson Township. It then drills deep into the Supreme Court’s remarkable determination that Act 13 is unconstitutional. Last, it places Robinson Township into context by considering its implications going forward, including at the local, state and global levels.

The white paper is available here. 

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May 08 2014

The Real Story of the (In)famous Snail Darter Case

Published by under Environmental Policy

In its 1978 decision in Tennessee Valley Authority v. Hill, the U.S. Supreme Court held that the Endangered Species Act prohibited the closure of a dam on the Little Tennessee River.   The absence of free flowing water, the Court decided, would jeopardize the continued existence of the snail darter, a small fish that lived only in that part of the river.   But the citizens and farmers–who brought the case to protect their livelihoods against a public works boondoggle–still lost.

Professor Zygmunt Plater, professor of law at Boston College who was the lead lawyer in the case, told the story at Widener’s Harrisburg, Pennsylvania campus on April 8.  His memorable presentation was at times moving, humorous, and sobering.  A recording is available here.

Congress subsequently amended the law to provide that a special “God Committee” could let the project go ahead if it were important enough to justify the eradication of the species.  But the Committee found that even the remaining costs of the project (it was mostly completed at the time) exceeded its total benefits.  Then, because of a late-night amendment to appropriations legislation, Congress subsequently exempted this project from the act altogether, and the dam was closed.     Project advocates framed the case  as “little fish vs. big dam” and environmental extremism, and the media bought into those frames.

Professor Plater, who is also the author of the recently published book, The Snail Darter and the Dam: How Pork-Barrel Politics endangered a Little Fish and Killed a River (Yale University Press 2013), pointed out that this is not the first or only time when the facts didn’t count in the public debate over an environmental issue.  Climate disruption is another example.  The recently released reports of the Intergovernmental Panel on Climate Change and the National Climate Assessment, which provide the most sobering account of climate change yet, may or may not prompt a greater public demand for action.  Still, one thing is clear from his story: an engaged citizenry doesn’t guarantee victory, but victory is impossible without it.   His story is a tribute to perseverance and principle in the face of daunting odds, and he and his clients nearly won.


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Jan 14 2013

2013 Environmental Law Distinguished Speaker Series

Sponsored by the Widener Environmental Law Center
2013 Environmental Law Distinguished Speaker Series

| DOWNLOAD The Brochure (.pdf) |

WHEN: February 7, February 19 & April 18, 2013
WHERE: Widener University School of Law
Delaware AND Harrisburg

Speaker Series blog:

Dinah Shelton
February 7, 2013—12:15 p.m.
Delaware Campus
“Environmental Rights in the Jurisprudence of Human Rights Bodies”

Dinah Shelton holds the Manatt/Ahn Professorship in International Law at the George Washington University Law School, where she has taught since2004. She is the author of Protecting Human Rights in the Americas, Remedies in International Human Rights Law, and the three-volume Encyclopedia of Genocide and Crimes against Humanity. In 2006, Shelton was awarded the Elisabeth Haub Prize for Environmental Law. She is a member of the Inter-American Human Rights Commission, for which she has served as president since 2010.
David Hunter
February 19, 2013—4:00 p.m.
Harrisburg Campus
“The Future of the International Climate Change Regime: A Tale of Two Approaches”
1 CLE credit available for this program.
David Hunter is Professor of Law, Director of the International Legal Studies Program, and Directorof the Program on International and Comparative Environmental Law at American University’s Washington College of Law. He currently serves on the Boards of Directors of the Environmental Law Alliance Worldwide-US, Earth Rights International, the Project on Government Oversight, and the Center for Progressive Reform.
Donald A. Brown
April 18, 2013—4:00 p.m.
Harrisburg Campus
“How U.S. Domestic Climate Law Needs to Respond to Emerging International Climate Law”
1 CLE credit available for this program.
Donald Brown is Scholar in Residence for Sustainability Ethics and Law, Widener University School of Law. He was Associate Professor of Environmental Ethics, Science, and Law at Penn State, an environmental lawyer for the states of Pennsylvania and New Jersey, and Program Manager for UN Organizations at the U.S. EPA.His most recent book is Climate Change Ethics:Navigating the Perfect Moral Storm.

Delaware program information: Carol Perrupato at or 302-477-2178.
Harrisburg program information: Sandy Graeff at or 717-541-3965.

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Nov 12 2012

Climate Change and Sustainable Development: A Perspective from Britain

Cambridge, United Kingdom—Stars and a full moon covered the sky over this city on the night that the eye of Hurricane Sandy crossed over my house in Pennsylvania. And, at the end of BBC’s all-night coverage of the presidential election, Mitt Romney gave his concession speech just as the sky began to lighten. Such is what it means to spend part of my sabbatical at the University of Cambridge.

The U.S. election and Hurricane Sandy obscured other developments that are also important. I took my sabbatical here to see what Britain is doing on sustainable development and climate change. My most recent book on U.S. sustainability, Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability, was published in June.

The United Kingdom provides an important reference point for the United States because of our common language and history as well as the similarity of our legal systems and culture. Americans have stronger ties with few other countries than they have with Britain. While Britain is far from perfect, it is considerably ahead of the U.S. on sustainability and climate change.

Some snapshots:

• People here generally understand that climate change is an issue that needs to be taken seriously. The media in this country noted New York City Mayor Michael Bloomberg’s endorsement of Barack Obama because of climate change, and Obama’s reference to global warming in his victory speech. But they were also critical of the near-total avoidance of this issue during the campaign by both candidates. Climate change denial is not as significant in Britain’s political landscape as it is in the United States.

• The United Kingdom adopted its basic climate change legislation in 2008, while George W. Bush was president. The law commits Britain to reducing its greenhouse gas emissions by 34% by 2020 and 80% by 2050 (from 1990 levels). The country is using five-year carbon budgets to meet these objectives. An independent body called the Committee on Climate Change is both advising the government and reporting on progress. There is no comparable law in the U.S., though Congress came close in 2009 and 2010.

• In 2008, the UK Government created the Department of Energy and Climate Change to ensure that climate change and energy issues are addressed together. A government department with climate change in its name also has considerable political significance. The U.S. simply has a Department of Energy, with real but limited ability to address climate change.

• The United Kingdom and other members of the European Union have set a target of meeting 15% of their energy demand from renewable sources by 2020. (Renewables provided only 3% of the UK’s energy in 2009.) The country is on track to meet that target, in no small part because it leads the world in offshore wind energy. In fact, major energy companies, investment firms, and a respected former Conservative party leader (Michael Heseltine) are all saying that a stronger policy framework must be put in place to support the investment necessary to meet the country’s carbon reduction goals. Renewable energy already provides a quarter million jobs, and this could double in the years ahead. The U.S. has no comparable national commitment, though many states are increasing their use of renewable energy.

• As part of the country’s commitment to address climate change, Parliament adopted legislation at the end of 2011 to foster energy efficiency and a low-carbon economy. Among other things, that legislation creates a “Green Deal” for financing energy efficiency improvements in residential and commercial properties without up-front payments. A small surcharge on electric bills provides funding, and costs are to be repaid from reduced energy bills. In the United States, this kind of activity is occurring in many, but not all, states.

• Britain’s greenhouse gas emissions are decreasing; U.S. emissions are increasing, though at a slower pace than previously. The UK’s greenhouse gas emissions declined 23 percent between 1990 and 2010. They are projected to decline a further 25% from 2010 levels by 2025, primarily because of growing use of renewable energy and other changes in electricity production. By contrast, U.S. greenhouse gas emissions increased 10.5% between 1990 and 2010. In the absence of further regulation, U.S. greenhouse gas emissions are projected to increase by only 2% between 2010 and 2035, according to the Energy Information Administration, ”due to a combination of modest economic growth, growing use of renewable technologies and fuels, efficiency improvements, slow growth in electricity demand, and increased use of natural gas, which is less carbon-intensive than other fossil fuels.” Significantly, U.S. per capita emissions are about double those of the UK.

• The House of Commons in Parliament has an Environmental Audit Committee that monitors the country’s commitments and actions on behalf of sustainability and climate change. It is made of members of members of the Labour, Conservative, Liberal Democrat, and Green parties. It issues periodic reports making recommendations on embedding sustainability in the operations of government, on the green economy, and on sustainable food. It is also reviewing the Government’s 2013 budget, “focusing on how the Government should be supporting a green economy in the context of its intention to secure economic growth.” There is nothing like this committee in the U.S. Congress.

• In 1994, the United Kingdom became the first country to produce a sustainable development strategy to make its environmental, economic, security, and social goals work together. Revised strategies were issued in 1999 and 2005, although the coalition government that took power in 2010 has yet to issue a strategy. There was also a Sustainable Development Commission, which operated for a decade as an inspired force on behalf of sustainability in government and, in its later years, as a government watchdog. In what was allegedly a budget cutting move, the coalition government ceased funding the Commission in 2011. The Government has not issued a new sustainable development strategy, though the Department for Environment, Food and Rural Affairs (this country’s analogue to the Environmental Protection Agency) issues reports on what the government is doing on behalf of sustainability. The U.S. has never had a national sustainable development strategy.

• A fungus that is likely to be devastating to Britain’s ash trees, evidently introduced from continental Europe and originally from Japan, was first discovered in this country in February 2012. Its effects are now being seen in many places. The fungus (Chalara fraxinea) spreads by wind, and there does not appear to be any cure or treatment. The fungus has the potential to wipe out Britain’s 80 million ash trees. The fungus is raising many questions about how effectively the country protects its borders from plant diseases. Sadly, ash trees in the United States are threatened by the emerald ash borer, an Asian insect accidentally introduced in the 1990s.

• Prime Minister David Cameron, whose Conservative party runs the Government in a coalition with the Liberal Democrat Party, promised in 2010 that his would be the “greenest government ever.” There is skepticism about this claim, backed by some evidence (see above for examples, although it is not clear that his Government can fairly be blamed for the ash fungus). Still, it is remarkable that he made that statement at all, and that he continues to make it.

So a country very much like ours is in many ways treating sustainable development and climate change as opportunities to create jobs, improve security, strengthen its economy, and protect the environment. Could the better parts of this story be replicated in the United States?

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Nov 08 2012

Widener Environmental Law Center Publishes Annual Report

Published by under Environmental Policy

Dear Friends: You’ll find the latest annual report from the Widener Environmental Law Center at:

A few highlights. We formed the Center under the motto “Law for Sustainability” to harness the expertise of the seven full-time environmental law faculty on Widener’s Harrisburg and Delaware campuses. Widener Law has one of the hardiest and longest-standing environmental law programs on the planet. We offer a dozen environmental courses, certificates and an LL.M in Environmental Law (concentration), a joint Masters degree in Marine Policy, and one of world’s original environmental clinical programs. Every year, we host conferences, debates, field trips, a Distinguished Speaker Series, and much more. We have hundreds of environmental law alumni, who populate courtrooms, boardrooms and legislative halls throughout the country, providing legal services to public, private and non-governmental sectors. In recognition of its world-class environmental program, Widener was recently awarded the “Magna Cum Laude” distinction from National Jurist magazine as one of the ‘greenest’ law schools in the country.


The Center’s faculty has a national and international reputation for teaching, scholarship and service on the critical environmental policy questions of the 21st century, including: participation in the recent United Nations Conference on Sustainable Development; Rio+20; involvement in a variety of environmental cases in Delaware and Pennsylvania courts as well as the U.S. Supreme Court; and authorship of a broad range of influential scholarship. Recent books include those by the center’s co-directors, John Dernbach (Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability), and Jim May (Contemporary Principles in Constitutional Environmental Law), and those by Jean Macchiaroli Eggen (TOXIC TORTS IN A NUTSHELL (4th ed.)), David Hodas (Climate Change: Mitigation and Adaptation), Patrick Kelly and Erin Daly (chapters in Routledge Handbook of International Environmental Law,  and Andy Strauss (chapter in Adjudicating Climate Change). And the reputation of the Widener Environmental and Natural Resources Law Clinic continues to grow under the directorship of Ken Kristl.


Here is a snapshot of our 2011-12 activities:

· Published 2 books, 7 chapters, and 27 articles, and 1 book review, dozens of blog entries, and filed 1 law professor amicus brief before the U.S. Supreme Court.

· Increased its environmental titles to 14 books, 55 chapters, 366 articles and essays, and 9 amicus briefs.

· Added 7,770 new downloads of environmental titles, including 3,500 for SSRN and 4,200 for BePress.

· Increased its overall SSRN and BePress downloads on environmental titles by 50 percent, to 35,911, including 19,072 for SSRN and 16,839 for BePress.

· Made 28 professional presentations near and far, including in Rio and Budapest.

· Served in 10 professional organizations.

· Granted 5 Certificates in Environmental Law.

· Hosted 3 distinguished speakers, as part of our “Distinguished Environmental Law Speaker Series.”

· Supervised 34 law students in the Widener Environmental and Natural Resources Law Clinic, who provided 3,811 hours of pro bono legal services to more than 33 different clients.

· Sponsored 4 field trips, including to the Heinz National Wildlife Center, the U.S. Supreme Court, and various professional conferences.

· Assisted students to attend numerous American Law Institute/American Bar Association and Pennsylvania Bar Institute conferences for little or no tuition.

You can read more about the entire program at:

Thanks for reading, and for your support. All best,

Jim & John

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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  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.


Quick Observations


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.


Quick Observations


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.

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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 II)

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  In Part I of this series of blog posts (see down below this post), I discussed the background and general aspects of the decision.  In this Part II, I want to focus on the biggest headline grabber of the decision:  the nullification of § 3304’s requirements concerning local zoning regulation of gas and oil drilling.


 The Background of the Zoning Issue

          To understand the § 3304 issue, it is important to note first that the Pennsylvania Supreme Court, in the twin 2009 decisions of Huntley & Huntley, Inc. v. Borough of Oakmont, 964 A.2d 855 (Pa. 2009) and Range Resources-Appalachia, LLC v. Salem Township, 964 A.2d 869 (Pa. 2009), ruled that Pennsylvania’s Oil and Gas Act did not fully preempt local zoning control over gas drilling activities.  In essence, what these two decisions held was that a local municipality could control (via zoning) the location of drilling activity, but not the activity itself.  Thus, a municipality could prohibit drilling in certain zones (like residential areas), but could not regulate things like the time or noise levels of drilling activity.  As a result of these two rulings, several municipalities found they could control drilling either under existing zoning ordinances or by the amendment of their zoning ordinances, and proceeded to do so.


Chapter 33 of the new Oil and Gas Act created by Act 13 clearly sought to severely restrict municipal control over gas drilling.  It used a 3-prong approach.  Section 3302 prohibits any municipal ordinances (other than those under the Municipal Planning Code or the Flood Plain Management Act) which seek to regulate oil and gas activities, expressly stating that the new act “preempts and supersedes” such municipal regulations.  Thus, municipal ordinances that sought, for example, to ban gas drilling in a town because the municipality did not want it, were now preempted.  Section 3303 declares that state environmental laws “occupy the entire field to the exclusion of local ordinances” so that all local ordinances  based on environmental concerns were preempted and superseded.  Thus, local ordinances which sought to ban gas drilling because it was or created an environmental problem were now preempted.  That still left zoning, and § 3304 seeks to limit municipal zoning power.  Section 3304(a) requires that all local zoning ordinances “shall allow for the reasonable development of oil and gas resources,” and “reasonable development of oil and gas resources” is defined in § 3304(b) to mean that a local zoning ordinance must, among other things: (1) allow “location assessment” operations such as seismic testing using explosives; (2) impose restrictions on oil and gas operations that are no more stringent than those imposed on other industrial operations; and (3) allow oil and gas operations (both drilling and impoundments) “as a permitted use in all zoning districts” (subject to some specified setback requirements).  This, of course had the effect of doing away with the ability to control the location of drilling recognized by the Pennsylvania Supreme Court 3 years before.  To make sure that municipalities complied with these requirements, Act 13 included some “hammers” in the form of creating a civil cause of action for a “person aggrieved” by a municipal ordinance not in compliance with Act 13 (§ 3306) with the ability of the plaintiff to obtain attorney’s fees (§ 3307), and a provision making municipalities whose ordinances are found by the Commonwealth Court or the Supreme Court to violate the Act to be “immediately ineligible” to receive any impact fees for gas drilling activity in the municipality (§  3308).


 The Court’s Opinion on the Zoning Issue

        As indicated in Part I of this blog post, the Robinson Township Court struck down § 3304 and any provisions of Chapter 33 of Act 13 which enforces the provisions of § 3304 (presumably § 3305 – 3308), declaring them to be “null and void” and enjoining the Commonwealth from enforcing those provisions because it found that the restrictions of § 3304 are unconstitutional.


The majority’s analysis is based primarily on substantive due process grounds.  It begins by analyzing what zoning is, calling it “an extension of the concept of a public nuisance which protects property owners from activities that interfere with the use and enjoyment of their property.”  Opinion at 27.  It picks up language from the US Supreme Court’s decision in City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732-33 (1975) (taken in turn from Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926)) that “[l]and use restrictions aim to prevent problems caused by the ‘pig in the parlor instead of the barnyard’”—an image that both the majority and the dissent play off in their differing interpretations of the constitutional issue.  In effect, the majority found that zoning classifications are based on a public process that results in a comprehensive plan, and that “Out of this process, a zoning ordinance implements a comprehensive zoning scheme; each piece of property pays, in the form of reasonable regulation of its use, for the protection that the plan gives to all property lying within the boundaries of the plan.”  Opinion at 29.  For the Court, substantive due process requires that “we take into consideration the rights of all property owners subject to the zoning and the public interests sought to be protected” in a kind of balancing test.  Opinion at 30.


The problem for the Court appears to be that, in arguing the constitutionality of the Act, the Commonwealth focused on the wrong public interest—the interest in development of oil and gas resources in the state.  Because “the interests that justify the exercise the police power in the development of oil and gas operations and zoning are not the same“ (though they sometimes overlap), Opinion at 31, the requirements in § 3304 that zoning ordinances must be changed have to be based on the interest in the exercise of the police power when zoning—an interest which focuses on comprehensive development according to a plan, not the development of oil and gas interests.  Thus, the majority found that by “requiring municipalities to violate their comprehensive plans for growth and development, 58 Pa. C.S §3304 violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications – irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height of structures, screening and fencing, lighting and noise.”  Opinion at 33.


The dissent’s problem with this conclusion is that it does not see a sufficient constitutional basis for requiring this analysis.  It relies on precedents that presume the validity of zoning ordinances and, viewing § 3304 as a zoning ordinance, finds no constitutional problem because Act 13 is a valid exercise of the police power.  In effect, the dissent is willing to let the Legislature make legislative/policy decisions about oil and gas development and zoning.


A Few Quick Observations


(1) The notion that the private property interests held by neighbors gives rise to substantive due process protections of a constitutional nature is perhaps the most intriguing element of the Court’s opinion concerning the zoning issues.  In responding to one of the dissent’s “pig in the parlor” arguments (that the “pig” of oil and gas development can only operate where the “slop” is found—that is, where the oil and gas are located), the majority states “the ‘slop’ here is not the oil and gas but the effects of oil and gas operations on other landowners’ quiet use and enjoyment of their property. The slop here – noise, light, trucks, traffic – literally affects the use of the landowner’s parlor.”  Opinion at 33 n. 21.  One can wonder how far such a right extends; the Court does not say.  It may be limited to the unique trade-off that zoning creates (“each piece of property pays, in the form of reasonable regulation of its use, for the protection that the plan gives to all property lying within the boundaries of the plan,” Opinion at 29).  One could foresee, however, private property owners attempting to extend it into other areas as a check on government regulation.


(2) Having rooted the nullification of § 3304 in substantive due process, it is difficult to see how this problem can be fixed via legislation (unless the General Assembly wants to completely revoke the MPC and grant no zoning power to municipalities—which would pose a whole different set of land use problems unrelated to oil and gas drilling).  If upheld on appeal, this notion of substantive due process provides a powerful protection for, and primacy to, the zoning power of local municipalities over state regulation.


(3) The decision leaves intact §§ 3302 and 3303—for now.  It does not appear that there was a challenge to those sections in this matter, so the decision cannot be viewed as providing any precedential support for those two sections.  Of course, given the fact that the Court has found that Act 13 cannot restrict zoning, perhaps the preemption provided by those sections is somewhat hollow anyway.  A municipality that wants to restrict drilling can simply use zoning tools to do so.


(4)  There will be an issue about whether the limitations on zoning recognized by the Supreme Court in the Salem Township and Borough of Oakmont cases (i.e., that zoning can regulation location but not activities of drilling) still apply.  Those cases relied on interpretation of the now-repealed language of the Oil and Gas Act.  If in fact there is constitutional protection for the zoning power, one could certainly see municipalities asserting their full zoning authority to regulate both the location and the activities of drilling within their jurisdiction.  In other words, far from closing the “loophole” that Salem Township and Borough of Oakmont created, Act 13 unconstitutional approach may have blown the issue wide open.


(5) The fight is not over.  The Pennsylvania Supreme Court can still overturn the Robinson Township decision.  In the meantime, however, oil and gas companies and drillers now have no real argument against zoning regulation of their activities.


(6) One has to wonder what the Act’s authors were thinking when they insisted that drilling take place in all zoning districts.  The notion of drilling in a residential area makes the Petitioner’s arguments so much easier because it makes the reach of the Act appear so great and draconian.  A plausible explanation would be that, combined with §§ 3302 and 3303, § 3304 was simply part of a bigger plan to try to make it abundantly clear that local municipalities should have no effective control over drilling.  Yet the overreach on zoning may well have served to undermine the entire enterprise by now giving constitutional protection to the zoning power that can be brought to bear on drilling.

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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  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.

 The Background

      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 Decision

      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.

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Jun 22 2012

Law for Sustainability: A View from Rio de Janeiro

What role can law and lawyers play in the quest for sustainability?  That question has been discussed in a wide variety of side events here, including a Colloquium on Environmental Law and Justice at the Supreme Court of the State of Rio de Janeiro, a World Meeting of Environmental Lawyers at the Rio de Janeiro Botanical Garden, a conference on Legal Frameworks for Sustainable Development at Fundação Getulio Vargas (a teaching and research institution), and a World Congress on Justice, Governance, and Law for Environmental Sustainability at the Portobello Resort and the State Supreme Court of Rio de Janeiro.


            A simple summary of what was said at these events is impossible, but two themes emerge.  First, environmental law matters a great deal.  It protects what would otherwise not be protected, prevents and punishes the worst behaviors, and sets a level playing field for business and industry.  Recent amendments to Brazil’s new forestry law, which provide amnesty to some who have unlawfully cut the country’s rainforests, were subject to a lot of criticism for weakening the country’s regulatory regime.  


            On the other hand, the Environmental Law Institute in Washington, D.C. has trained more than 1,000 judges in 20 countries on environmental and natural resources law, and many judges, including Justice Antonio Benjamin of Brazil’s Supreme Court, expressed support for expansion of ELI’s work.  


            Access to justice is also an important issue.  Environmental pollution and degradation hurt not only the environment but also other people.  And so the availability of lawyers who are willing to represent ordinary citizens was often emphasized.    


            For all its value, however, environmental law is a blunt instrument.  It does not—and probably cannot—require companies and other actors to do their best in furthering environmental, social, and economic goals at the same time.  So the second theme–creation of the “law of sustainability”–is both essential and challenging.  Examples from these side events:


  • Throughout Brazil, landowners (many with low incomes) are being paid for the environmental services that their land provides to others, including protection of biodiversity, carbon storage, scenic beauty, and watershed protection.  Of course, they must engage in specified conservation practices to be paid. 
  • Norway and other countries are moving toward “green fiscal reform,” which involves taxation of environmental pollution, often in return for reductions in other taxes, including income taxation.     
  • In trade law, the European Union is moving toward sustainability by subjecting bilateral trade agreements to sustainability impact assessment and also by facilitating liberalization of trade in green goods and services.
  • Intellectual property rules, particularly patent law, often discourage innovation for environmental sustainability, including renewable energy, by discouraging new entrants to the field.  To be successful at fostering sustainability, these rules need to be revised.  
  • Mexico’s new climate change law, which requires the development of a national plan to reduce greenhouse gas emissions, is also intended to promote a green economy by, among other things, fostering innovation in renewable energy and energy efficiency.
  • In the United States, as I explained at two of these side events, much of the progress toward energy efficiency, renewable energy, organic food production and other sustainable development activities over the past two decades has come about because of laws that are intended to foster those forms of economic development.  (see
  • The list of innovative measures for sustainable development has become so extensive—and the demand for knowledge about these measures so great—that the International Development Law Organization has prepared a compendium of legal best practices for a green economy. 


            These are only examples of the emerging law of sustainability.  My friend and colleague, Ann Powers, who teaches at Pace Law School, has a nice explanation for how we can create more of these examples.  Law for sustainability, she said, requires “not only analytical skills but also creativity, imagination, and innovation.”  How can we do a better job of teaching, encouraging, and practicing these things?

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Jun 19 2012

The U.N. Conference on Sustainable Development—A Tale of Two Narratives

The U.N. Conference on Sustainable Development here in Rio de Janeiro is occurring on the 20th anniversary of the famous 1992 Earth Summit, also in Rio de Janeiro.  At the Earth Summit, heads of state did not just say that sustainable development is a good idea.  They also, and more importantly, pledged to make it happen in their own countries.  One of those heads of state was U.S. President George H.W. Bush.


Twenty years later, a great many heads of state (or, for the United States, Secretary of State Hillary Clinton), will gather to focus on two particular implementation issues—greening the economy to achieve sustainability and eradicate poverty, and creating institutions for sustainability.  But the conference is also intended to reinvigorate the amazing energy that existed at the Earth Summit 20 years ago, when I took a week off from my job at the Pennsylvania Department of Environmental Resources and attended as an observer.  While the formal conference runs from June 20-22, a variety of side events and meetings related to the conference have already been going on more than a week.


Two stories or narratives about the conference are developing—both quite different, and each containing a good bit of truth.


On one hand, a great many nongovernmental organizations, corporations, local, state, provincial, and national governments are sharing what they have achieved in the past two decades, and what they hope to achieve.  They have taken actions to move toward sustainability for a variety of reasons—to satisfy customers and investors, to improve quality of life, to save money, and to protect the future for their grandchildren.  They see that making their environmental, social, and economic goals work together (the essence of sustainability) provides more benefits than business as usual.


A new book about sustainability in the United States—Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability—recounts a great many such stories of sustainability in the United States—in local, state, and even national governance; at colleges and universities; and among corporations.  (I am the principal author of that book; see


Here I have heard similar stories from around the world.  The head of Quebec’s government spoke the other night about Plan Nord, a sustainable development plan for the northern two-thirds of the province that will protect from development an area the size of France and provide for sustainable development of the rest.  The plan protects the First Nations (or native) people of Quebec as well as an enormous part of the province’s boreal forest (which is an important area for storing carbon dioxide).  Kenya and Mexico have adopted laws to reduce greenhouse gas emissions and adapt to climate change.


On the other hand, there is considerable skepticism here about the formal outcome of the conference.  The official document—entitled “The Future We Want,” is better than many feared, but not as good as many had hoped.  The difficulty in finding common ground among all of the world’s diverse nations feeds a narrative that nothing much has happened here.  That is an easy narrative, of course, in a time when there is already considerable skepticism about government.


However one feels about the official outcome, the important work of sustainability will continue—by the private sector, individual governments, and nongovernmental organizations all over the world.  


–John Dernbach, Distinguished Professor of Law, Co-Director, Environmental Law Center

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