State Supreme Court finds Act 13 zoning preemption unconstitutional
The Pennsylvania Supreme Court, on Dec. 20, released its decision in the Act 13 case, Robinson Twp. v. Pa. Public Utility Commission, finding the local zoning preemption provisions of the act unconstitutional.
The opinion, authored by the Chief Justice Castille, holds that “several core provisions of Act 13 violate the commonwealth’s duties as trustee of Pennsylvania’s public natural resources under the Environmental Rights Amendment,” to the Pennsylvania Constitution.
Justices Debra McCloskey Todd, Seamus McCaffrey and Max Baer, who joined in the result, also held that the provisions violate the Environmental Rights Amendment.
“This decision affirms, as we have argued since Act 13 was first introduced,” said Jeff Schmidt, Sierra Club Pennsylvania Chapter director, “that the state government cannot give DEP or the natural gas industry free rein to supersede the established authority of municipalities.”
The suit against Act 13 was filed by municipalities across Pennsylvania, and included Yardley Borough and Nockamixon Township in Bucks County and the Delaware Riverkeeper.
“We in the Gallows Run watershed benefited directly from the Nockamixon Board of Supervisor's courageous decision to challenge the law's denial of our rights as citizens of Pennsylvania to the protection of our natural resources, clean air and water,” said Todd Stone, president of the Gallows Run Watershed Association.
“This is a real victory for local governance and shows the power of a determined citizenship, even in a small rural township like ours.”
“In the winter of 2012, Tom Corbett signed Act 13 at night and behind closed doors, hoping that people wouldn’t notice. Not only did they notice, but they rose up and challenged the law, and today, they won,” state Rep. Steve Santersiero said. “Today’s ruling is a victory for the residents who care about keeping local control over the development of their communities and it is a victory for all who work hard to preserve our environment in Pennsylvania.
“I am proud that a town in my legislative district – Yardley Borough – was one of a handful of municipalities which challenged the law giving gas drilling and related industrial operations exemption from local zoning restrictions of where they can locate their operations.”
Santarsiero said the court also found that the Delaware Riverkeeper Network and the Delaware Riverkeeper have standing to challenge Act 13, reversing the Commonwealth Court's adverse determination. “This will allow their challenge that the law allows for unlawful taking of property for a private purpose and an improper use of the commonwealth’s eminent domain powers.”
Reaction from energy companies and their advocacy organizations was not favorable.
Pennsylvania Independent Oil and Gas Association President Louis D. D'Amico said his organization disagrees with the ruling.
“We are encouraged, however, by the strong working relationships established between our industry and the overwhelming majority of local and county governments that host our members' drilling and midstream operations, both historically and with the recent growth of unconventional natural gas development. We expect those partnerships will continue, regardless of this decision, and will continue to work in a productive and open manner with those governments and their constituents to safely develop our energy resources and support the commonwealth's economy.”
D’Amico is concerned, however, with municipalities that have been unwilling to develop relationships with the industry. He foresees future damage to the rights and property of the industry, and the rights property owners in those municipalities who want to develop natural gas on their land.
He warned that significant capital investment will leave Pennsylvania for states with “greater clarity in their political and regulatory policies.”
From Pittsburgh, Marcellus Shale Coalition President Dave Spigelmyer said, “The decision is a disappointment and represents a missed opportunity to establish a standard set of rules governing the responsible development and operation of shale gas wells in Pennsylvania.
Spigelmyer said the decision should be a reminder to policymakers of Pennsylvania’s business climate challenges. “If we are to remain competitive and our focus is truly more job creation and economic prosperity, we must commit to working together toward common sense proposals that encourage – rather than discourage – investment into the commonwealth.”
The Marcellus Shale Coalition noted that a recent survey by the Fraser Institute, found that Pennsylvania’s regulatory and tax climate are a major deterrent for attracting oil and gas investment.
“Act 13 was a bipartisan accomplishment between the administration and members of the General Assembly, which raised the bar on environmental protection standards while respecting the rights of local governments,” Gov. Tom Corbett said, noting his disappointment.
“We must not allow today’s ruling to send a negative message to job creators and families who depend on the energy industry."
The court also found that Dr. Hehernosh Kahn had standing to challenge Act 13's health care provider gag rule and remanded the case to the Commonwealth Court for further proceedings.
The gag rule prohibits physicians from revealing contents of chemicals used in gas drilling to other physicians and to patients.
Copyright ©2013 Bucks County Herald, Inc. All rights reserved.