(Harrisburg — December 20, 2013) — In a 4-2 decision yesterday, the Pennsylvania Supreme Court affirmed a 2012 Commonwealth Court decision striking down controversial portions of Act 13, under the Pennsylvania Constitution. Most notably, the Court struck down parts of Act 13 that would have created a statewide zoning scheme for oil and gas activities, and required municipalities to allow those activities in all zoning districts, including residential districts. PennFuture opposed Act 13 because of the issues relating to local preemption raised by Chief Justice Ronald D. Castille, insufficient regulatory safeguards to protect natural resources and communities, and an inadequate impact fee.
The decision is a substantial rebuff of attempts by the legislature and governor to treat the new shale gas industry differently in Pennsylvania than other heavy, industrial land uses.
The result of yesterday’s decision was not necessarily surprising. Act 13's evisceration of local land use powers was unprecedented — a "blanket accommodation of industry and development," the Supreme Court wrote.
What was astonishing was the reasoning behind the decision.
The plaintiffs attacked Act 13 on several Constitutional grounds — among other things, that these sections violated "substantive due process" and violated Article I, Section 27, the so-called "Environmental Rights Amendment."
The Commonwealth Court struck down Act 13's statewide zoning scheme as a violation of substantive due process, a concept that requires that statutes have legitimate public purposes and strike a reasonable balance between benefiting the public and impinging on individual rights.
Most observers expected that if the Supreme Court affirmed the Commonwealth Court, it would do so on the same grounds — i.e., substantive due process.
Instead, a plurality of the Supreme Court — Chief Justice Castille, Justice Todd, and Justice McCafferty — found that the statewide, gas-activities-everywhere zoning scheme violated Article I, Section 27. (In a concurring opinion, Justice Baer found, like the Commonwealth Court, that the overriding of local zoning regulation was an unconstutional violation of substantive due process). Writing for the plurality, Chief Justice Castille noted that Pennsylvania "has a notable history of what appears retrospectively to have been a shortsighted exploitation of its bounteous environment," especially during the heydays of timber and coal. Constitutional challenges based on protection of natural resources were not possible then, the Chief Justice noted, because there was no Environmental Rights Amendment. However, "[t]he response is available now." The opinion is remarkable. It signals to Pennsylvania’s citizens that the Pennsylvania courts may stand as a much-needed bulwark against other "blanket accommodations" to industry of the legislative and executive branches of state government.
"The lesson here is clear," said Cindy Dunn, president and CEO of PennFuture. "Our elected officials have overreached in treating local rights as mere obstacles for the gas industry, and trying to sweep them away. This decision is a wake-up call to our elected officials: they are but temporary trustees of our bountiful natural environment, which must be conserved for this and future generations. This decision is a great victory for the rights of local government and the health and well-being of the Commonwealth’s citizens and natural resources."
The ruling struck down Sections 3215(b)(4), 3303, and 3304 of Act 13. Section 3215(b)(4) required the Department of Environmental Protection (DEP) to waive setbacks for drilling activities from waterbodies as long as an operator submitted a plan purportedly showing that those waterbodies would be protected. Section 3303 established statewide rules for oil and gas activities irrespective of existing or future local zoning rules. Section 3304 required municipalities to allow oil and gas development activities in all zoning areas.
Chief Justice Castille articulates a new framework for evaluating government actions under Article I, Section 27, which guarantees each citizen the right to "clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment." Those environmental rights are "presumptively on par" with other civil liberties found in Article I's Declaration of Rights, writes Castille, and the fact that the Constitution declares them "inviolate" "necessarily implies that economic development cannot take place at the expense of an unreasonable degradation of the environment."
Noting Pennsylvania’s abysmal history of resource exploitation, Castille largely rejects past decisions applying Article I, Section 27 as ignoring the plain language of the Amendment, and replaces it with an invigorated analysis giving real meaning to the "public trust doctrine." This doctrine emphasizes that the government must reasonably exercise its powers in a manner that considers the environmental impact of its actions, both on present and future generations, and that it cannot take actions that improperly burden the trust, namely, our environment, in a way that works a harm on the citizens of Pennsylvania. The rights given by Article I, Section 27 are "neither meaningless nor merely aspirational," Castille wrote, and "when government acts, the action must, on balance, reasonably account for the environmental features of the affected locale….
Dunn stated that PennFuture applauded the Court’s analysis, noting that her organization will take steps to ensure that the government abides by its responsibilities and obligations under the Environmental Rights Amendment. "This breathes new life into the Environmental Rights Amendment," continued Dunn, "and we intend to use this opportunity to advocate for more effective stewardship of Pennsylvania's land, air and water." Although Chief Justice Castille's plurality opinion on Article I, Section 27 does not establish binding precedent, lower tribunals may immediately look to it for guidance in deciding similar issues. Moreover, in a future case, Castille's analysis could garner a fourth vote from recently-confirmed Justice Correale Stevens, who did not take part in the Act 13 case, or from Justice Max Baer, who described Castille's opinion as "pioneering" but voted to decide the Act 13 case on a narrower basis.
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PennFuture is a statewide public interest membership organization founded in 1998 with offices in Pittsburgh, Harrisburg, Philadelphia and Wilkes-Barre. PennFuture's activities include litigating cases before regulatory bodies and in local, state, and federal courts; advocating and advancing legislative action on a state and federal level; public education; and assisting citizens in public advocacy.
The Philadelphia Inquirer called PennFuture the "state's leading environmental advocacy organization;" the Pittsburgh Post-Gazette named the organization "one of the 10 most influential groups on the issue of natural gas drilling;" and StateImpact Pennsylvania, an online collaboration of NPR stations across the state, called PennFuture "the commonwealth's main environmental advocate."
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