Pennsylvania Supreme Court declared major provisions of the state’s Marcellus Shale drilling law, Act 13, unconstitutional Thursday, including one that allows gas companies to drill anywhere, overriding local zoning laws.
The court’s decision, on a 4-2 vote, also sent back to Commonwealth Court for review and disposition challenges by a physician to the Act 13 provisions that would have prevented doctors from telling patients about health impacts related to shale gas development, and a constitutional challenge that the law benefits a single industry.
Voting in the majority, which held that “several challenged provisions of Act 13 are unconstitutional,” were Chief Justice Ronald Castille, and Justices Debra McCloskey Todd, Seamus McCaffery and Max Baer. Justices Thomas Saylor and J. Michael Eakin filed dissenting opinions.
Deron Gabriel, commission president in South Fayette, the only Allegheny County municipality to challenge the shale gas law passed in 2012, said the decision validating municipalities’ zoning rights was a victory for all residents of the county and the state.
“Preserving zoning is vital to local planning efforts, in order to keep industrial activity out of residential and commercial areas,” Mr. Gabriel said. “Now we can keep industrial activities away from our school and residences, and there’s been more and more of a push by the industry to locate closer to the residential areas.”
“We got the major thrust of what we were looking for. The drill-everywhere provision was declared unconstitutional and that part of the law was permanently enjoined,” said John Smith, the lead attorney representing South Fayette and the other municipalities that brought the case.
In addition to South Fayette, the municipal plaintiffs included Peters, Mount Pleasant and Robinson townships in Washington County, and Nockamixon and Yardley in Bucks County in Eastern Pennsylvania.
In affirming the municipalities’ standing to bring the Act 13 challenge, which was challenged by the state’s attorneys, Chief Justice Castille wrote in the 162-page majority decision that “[t]he protection of environmental and esthetic interests is an essential aspect of Pennsylvanians’ quality of life and a key part of local government’s role.”
The decision also notes “how remarkable a revolution is worked by this legislation (Act 13) upon the existing zoning regimen in Pennsylvania, including residential zones,” and it questions whether the General Assembly can pass laws inconsistent with the constitutional mandate to protect the environment.
“By any responsible account,” Chief Justice Castille wrote, “the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and the future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.”
He goes on to say that although the state’s regulatory powers are broad, they are “limited by constitutional demands, including the Environmental Rights Amendment.”
The decision sent shock waves through the shale gas industry, which had sought legislation guaranteeing uniform statewide land use rules, and the Corbett administration and legislators who had championed passage of the oil and gas law changes.
Gov. Tom Corbett, who had supported and signed the legislation into law in February 2012, issued a statement saying he was disappointed by the decision. He maintained that Act 13 improved environmental protections while respecting local government rights.
“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,” Mr. Corbett said.
Rep. Jesse White, D-Cecil, an outspoken opponent of Act 13, hailed the ruling as an affirmation of the state constitution’s guarantee of “clean air and clean water” and the self-governance rights of local communities.
He said “a clear message has been sent to Gov. Corbett and his friends in the energy industry: Our fundamental constitutional principles cannot be auctioned off to wealthy special interests in exchange for campaign dollars. On this day, David has defeated Goliath.”
Adam Garber, field director with PennEnvironment, a statewide environmental advocacy organization, said the court’s decision shows that the state constitution’s environmental rights provisions have “serious teeth.”
“The Legislature made a huge overreach in trying to take over regulation of gas drilling from local municipalities,” Mr. Garber said. “The court said there are serious health and environmental impacts from gas drilling that the Legislature did not address and that local communities ought to.”
