The Pennsylvania Supreme Court on Thursday struck down
provisions of the state's Oil and Gas Act that stripped municipalities of the
power to determine where natural gas drilling activity could occur within their
boundaries.
The long-awaited decision is a blow to a 2012 law known as
Act 13 that was promoted by Gov. Corbett and the Marcellus Shale natural gas
industry as a means to create a uniform statewide standard for gas development.
By a 4-2 vote, the court ruled that the zoning provisions in
the law were unconstitutional, though the court disagreed on the grounds for
striking down the law.
"The bottom line is that the majority of the court
agreed that Act 13 is unconstitutional, and that local governments can zone oil
and gas drilling like they do other activities," said Jordan B. Yeager, a
Doylestown environmental lawyer who argued the case on behalf of several
municipalities.
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The fracklash
Corbett, Republican legislative leaders, and the Marcellus
Shale Coalition, the industry trade group, called the 162-page ruling a
"disappointment" in separate statements.
"We must not allow today's ruling to send a negative
message to job creators and families who depend on the energy industry,"
Corbett said in a statement. "I will continue to work with members of the
House and Senate to ensure that Pennsylvania's thriving energy industry grows
and provides jobs while balancing the interests of local communities."
Dave Spigelmyer, the coalition's president, said the
decision "represents a missed opportunity to establish a standard set of
rules governing the responsible development and operation of shale gas wells in
Pennsylvania."
Environmental groups applauded the decision, saying it would
allow municipalities some control over where drilling and hydraulic fracturing
take place.
"With this ruling, municipal governments will once
again have the ability to determine when and where fracking occurs in their
locality," PennEnvironment said. "This is crucial for protecting
public health, our environment and our communities."
The decision stems from a lawsuit brought by seven municipalities
and the Delaware Riverkeeper Network that challenged the constitutionality of
Act 13. The municipalities included Nockamixon Township and Yardley Borough in
Bucks County.
The law restricted municipalities' ability to control where
companies might place rigs, waste pits, pipelines, and compressor and
processing stations. It allowed drilling in residential districts as long as
certain buffers were observed.
Commonwealth Court struck down the zoning provisions in the
law in July 2012. The state was enjoined from enforcing the disputed provisions
of Act 13 while the case was under appeal.
The full panel of seven Supreme Court justices heard
arguments in October 2012, before one justice resigned in May in a campaign
fund-raising scandal. That left three Republicans and three Democrats among the
justices who heard the case, and some industry supporters feared the justices
would divide along party lines, automatically upholding the lower court's
decision.
But Chief Justice Ronald D. Castille, a Republican, put
fears of a stalemate to rest when he joined with Democrats Max Baer, Debra
Todd, and Seamus P. McCaffery in the ruling. Castille wrote the opinion.
Justices J. Michael Eakin and Thomas G. Saylor voted in the
minority.
"We are stunned that four justices would issue this
ruling, which will so harshly impact the economic welfare of
Pennsylvanians," State Senate President Pro Tempore Joe Scarnati (R.,
Jefferson) and House Speaker Sam Smith (R., Jefferson) said in a joint
statement. They said the ruling likely would increase natural gas prices and
cost "a multitude" of jobs.
The challenge to the Act 13 zoning restrictions is part of a
larger clash taking place across the country between the oil and gas industry
and local communities that object to drilling.
While seven municipalities were parties to the legal
challenge, a wide range of local governments had expressed support for the
lawsuit because of its implications on broader zoning policy.
"The entire state was at risk of losing zoning,"
said Brian Coppola, supervisor of Robinson Township, a town of 2,200 people in
Washington County whose name is in the title of the court case.
"Few could seriously dispute how remarkable a
revolution is worked by this legislation upon the existing zoning regimen in
Pennsylvania, including residential zones," Castille wrote. He said the
law's rules represented an unprecedented "displacement of prior planning,
and derivative expectations, regarding land use, zoning, and enjoyment of
property."
The state argued that it was the constitutional trustee of
Pennsylvania's public natural resources and that the General Assembly is vested
with exclusive authority to regulate the oil and gas industry.
Yeager, the Doylestown lawyer, said the ruling
"restores the vitality" of Pennsylvania's 42-year-old Environmental
Rights Amendment, which confers constitutional protections to adjoining
property owners as well as future generations of Pennsylvanians, not just the
owners of mineral rights.
"This reiterates that there needs to be a balance and
if you go too far, the court's going to strike it down," Yeager said.
Act 13 also included a provision establishing an impact fee
on drillers of "unconventional" wells such as those in the Marcellus
and Utica Shales. The constitutionality of the fee was not an issue in the
court case.
The Supreme Court also overruled Commonwealth Court's
decision not to grant standing to an Allegheny County doctor who challenged the
"physician gag order" provision in Act 13. That provision allows
drilling companies to hand over proprietary information on chemical additives
only "if the health professional executes a confidentiality
agreement."
Mehernosh Khan said the law prevents doctors treating people
who may have been exposed to drilling-related chemicals from disclosing
information on the materials.
"In light of Dr. Khan's unpalatable professional
choices in the wake of Act 13, the interest he asserts is substantial and
direct," the Supreme Court said. Its ruling means Khan can now challenge
the law in court.
The political implications of the ruling may also
reverberate into next year's gubernatorial election.
Coppola, a Republican supervisor in Robinson Township, said
Act 13 was an affront to local governments.
"I will say this as a Republican: Every Republican who
participated in this should be out of office, including the governor," he
said. "It was so blatantly unconstitutional a thing to do, I still can't
believe it."
Source: Philly.com
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