Victory in PA! - Court Declares Zoning Provisions of Act 13 Unconstitutional.

Municipalities across Pennsylvania can breathe a big collective sigh of relief today.  That’s because, this morning, a panel of the Pennsylvania Commonwealth Court - in response to a lawsuit brought by seven municipalities, the Delaware Riverkeeper Network, and a Pennsylvania health professional - struck down  the statewide zoning provisions of the Act 13 as unconstitutional under both the Pennsylvania and the U.S. Constitution.  As I’ve blogged about earlier, these provisions would have practically destroyed municipal zoning authority with respect to fracking, forcing municipalities to allow fracking activities everywhere, even within 300ft of a home, school, or hospital.

Today’s decision is a huge victory, not only for municipalities who want to protect their communities from the health harms, environmental damage, and the unprecedented threat of industrialization of rural areas posed by fracking, but also for the constitutional rights of all Pennsylvania citizens.  To better understand this decision, and why it’s so important, a little background on zoning and constitutional law is helpful.  To make it easy, I’ll break it down by answering three basic questions: 

  • Where does zoning power come from? – In Pennsylvania, as well as in many other states, the power to zone belongs to the state.  Pennsylvania gives this power to municipalities through legislation (specifically, the Municipalities Planning Code), but what the state giveth, it can also taketh away with subsequent legislation.  This is why, in defending Act 13, the state argued that it was merely reclaiming zoning authority that it had in the first place. 
  • Do the U.S. and Pennsylvania Constitutions limit this power? – Yes.  An important job of any good constitution is to protect its citizens from unfair or irrational laws.  That’s why every state law has to comply with something called “substantive due process” – a fancy legal term meaning that every law must be rationally designed to promote some public good (whether it actually does or not).  For example, the Pennsylvania legislature couldn’t pass a law revoking the driver’s license of all red-headed people in order to prevent drunk driving, because, even though it might stop a few drunk drivers, there is no rational connection between red-heads and drunk driving.  
  • How do these limits apply to zoning?— The Pennsylvania Supreme Court has held that in order for a zoning law to be constitutional it must be “in conformance with a comprehensive plan” that takes into account the rights of all property owners – not just a lucky few.   For example, when a zoning law prevents you from bulldozing your house and building a factory, this is constitutional because the residential zone that your house sits in is part of a rational land use plan to protect you and your neighbors from pollution, noise, and big ugly nuisances in the place where you all live.  The fact that you might make a lot more money by building a factory doesn't make any difference. 

Bearing all this in mind, the court’s decision today boils down as follows: the zoning provisions of Act 13 are unconstitutional because (as a lot of us have been saying for a while) they just don’t make any darn sense.  

Fracking can seriously harm communities – it pollutes the air, it can contaminate drinking water, and it turns peaceful rural neighborhoods into industrial hot spots.  To zone in a way that indiscriminately permits fracking everywhere (as Act 13 essentially did), regardless of how it may hurt people or their property, is clearly not in accordance with any rational comprehensive plan.  That's true whether it’s the municipality doing the zoning or the state.  As the court put it: “If a municipality cannot constitutionally include allowing oil and gas operations, it is no more constitutional just because the Commonwealth requires that it be done.” 

In addition to the statewide zoning provisions, the court also struck down provisions of the law that allowed the Pennsylvania Department of Environmental Protection (DEP) to arbitrarily waive protective setbacks contained in Act 13.  Unlike with the statewide zoning provisions, which would now likely require a constitutional amendment for re-passage, the state legislature may be able to re-enact these waiver provisions.  To do so, however, they would have to provide specific and rational guidelines for when DEP may grant a waiver.

In sum, today’s ruling effectively does two things (1) it affirms the right of Pennsylvanians to laws rationally designed to protect their welfare, and (2) it maintains the traditional regulatory status quo – i.e. with the state regulating the “how” of gas drilling and the municipalities regulating the “where.”  A judicial stay issued early in the case already preserved this status quo by preventing the zoning provisions of Act 13 from ever actually taking effect, and – if the decision of the Commonwealth Court stands – they never will.  Expect the fight on Act 13 to rage on, however, as it’s anticipated that the state will appeal the court’s ruling to the Pennsylvania Supreme Court. 

In the meantime, we can take today to celebrate the fact that, at least for the time being, the Pennsylvania constitution is still gainfully employed in protecting all Pennsylvanians and their property and not just the profits of a few.


UPDATE:  As anticipated, late Friday afternoon, the Corbett administration filed an appeal of the Commonwealth Court’s decision with the Pennsylvania Supreme Court.  The high court may now hear or decline the case, as it has discretion whether to consider these types of appeals.  Expect an update here regardless of whether or not the court decides to exercise jurisdiction.