Pennsylvania Supreme Court Definitively Overturns Remaining Offensive Provisions of Act 13
The decision of the Pennsylvania Supreme Court entered on September 28, 2016 in Robinson Township et. al vs. the Commonwealth of Pennsylvania Public Utilities Commission et al (the self-styled “Robinson III Decision”) definitively overturned the remaining offensive provisions of Act 13. The decision offers further guidance for municipalities wrestling with how to fashion ordinance amendments to address oil and gas drilling operations post Act 13 and the appellate decisions it spawned.
The Robinson III Decision is 88 pages in length and that is just the majority opinion! In a 4-3 majority opinion authored by Justice Todd and joined by Justices Donahue, Dougherty and Wecht the Pennsylvania Supreme Court unequivocally and definitively determined the following:
1. That its previous rulings concerning the unconstitutionality of Sections 3303 and 3304 of Act 13 are affirmed. As readers will likely know, Section 3303 attempted to pre-empt local zoning and flood plain ordinances that would apply to oil and gas operations. Section 3304 imposed an affirmative obligation on municipalities to adopt zoning ordinance amendments permitting oil and gas operations in all zoning districts and to comply with a laundry list of requirements stated under this section. Importantly, Robinson III re-affirmed the rationale for finding these provisions unconstitutional as announced by Justice Castile in the previous Robinson Township Decision which the Supreme Court labeled “Robinson II”). In fact, it stated that the above sections violate both Article I, Section 26 of the Pennsylvania Constitution (the “Environmental Rights Amendment”) and the substantive rights of citizens and local governments to regulate land uses within their communities, the rationale relied upon by the Commonwealth Court in determining that these provisions are invalid.
2. That Sections 3305 and 3306 of Act 13, which empowered the Public Utilities Commission and Commonwealth Court to essentially act as statewide zoning hearing boards, are likewise unconstitutional as being inextricably linked to the unconstitutional Sections 3303 and 3304.
3. That Sections 3307-3309 are unconstitutional. These provisions would have imposed financial penalties on municipalities which, as a result of the review process required under Sections 3305 and 3306, were found to have violated Act 13.
4. That the restrictions on health professionals’ access to information about chemicals used in fracking, contained in sections 3322.1(b)(10) and (b) (11), are unconstitutional.
5. That the provision that requires DEP to notify only public water suppliers and not private well owners of a spill that could affect their water supply are unconstitutional (Section 3218.1).
6. That Section 3241 of Act 13 that grants the power of eminent domain to oil and gas companies thereby permitting them to take private property for uses specified in Section 3241 is unconstitutional.
It is fair to say that Robinson III is a wholesale repudiation of the land use and other onerous provisions the oil and gas industry was able to successfully convince the legislature to adopt as Act 13.
Of particular importance to the enactment of zoning ordinance amendments addressing oil and gas exploration and development is the following:
“Given the absence of those statutory provisions [Sections 3303 and 3304], municipalities may again, as they did prior to the passage of Act 13, regulate the environmental impact, setback distances, and the siting of oil and gas wells in land use districts through local ordinances enacted pursuant to the provisions of the MPC and the Flood Plain Management Act, provided that such ordinances do not impose conditions on the features of well operations which remain valid provisions of Act 13 regulate. Huntley, 964 A.2d at 886 n. 11.” Slip Opinion page 47.
The Huntley (aka Council of Oakmont) and Salem Township cases cited with approval in the Robinson III case were decided before Act 13 was adopted and before any of the two previous Robinson Township decisions. These decisions held that municipalities have the authority to adopt ordinances that establish zoning districts where oil and gas exploration is permitted and where it is not and to regulate traditional objects of zoning such as setbacks, area and dimensional requirements and environmental regulations that protect wetlands and other important natural features. However, zoning ordinances that totally prohibit oil and gas production anywhere in the municipality must meet a heavy burden to justify total exclusion and are likely unconstitutional (Huntley, Salem Township and Exton Quarries). In addition, zoning ordinances are not permitted to regulate the operational aspects of oil and gas production as those are regulated by constitutional provisions of Act 13 and municipal regulation is pre-empted. Requiring amounts and types of insurance, establishing hours of operation and regulating methods used in production are examples.
It is apparent from the above that developing defensible oil and gas land use regulations should start with consulting your solicitor. Our firm would be happy to assist in whatever capacity your solicitor may find helpful in developing defensible oil and gas zoning regulations that effectively protect the community from the adverse impacts of such a land use.
This article is not legal advice and is provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction.