I normally hate to write anything in all caps, but there is just no way to describe the Pennsylvania Supreme Court’s 4-2 decision yesterday declaring the zoning provisions of Act 13 unconstitutional as anything other than A HUGE VICTORY FOR ALL PENNSYLVANIA COMMUNITIES!!
Why is this case such a big deal, you ask? The court has ruled on the side of communities’ rights to stand up to big oil and gas companies who want to frack in their backyards against their will. A state law called Act 13 had stripped these rights—no doubt at the behest of industry itself. But seven communities in Pennsylvania took them to court to reclaim the right to use their traditional zoning powers to determine how fracking moves forward within their own borders. And now, against David and Goliath odds, Pennsylvania’s communities have won.
Photo via Ruhrfisch /Wikimedia Commons
To understand the stakes in this case, one must understand the truly horrendous the zoning provisions of Act 13 were. As I’ve blogged about before, the 2012 act—which comprehensively amended the existing Oil and Gas Act—added several provisions that would have virtually destroyed local zoning control over fracking and other oil and gas drilling.
Specifically, Act 13 would have meant, among other things, that all Pennsylvania municipalities—whether they liked it or not—would have had to: (1) allow fracking operations (including drill rigs, flare stacks, and open waste pits) to be set up shop in every zone, including residential areas or near schools and hospitals; (2) allow compressor stations and gas processing plants in all agricultural zones; (3) in residential zones, allow well pads and frack pits as close as 300ft to an existing home; and (4) allow fracking any time of day or night with no control over hours of operation.
Needless to say, by essentially re-writing every zoning code in Pennsylvania to allow 24-hour fracking in all of the places where Pennsylvanians live, work, and send their children to school, Act 13 was a major and unwelcome change to traditional home rule powers Pennsylvania municipalities have long enjoyed over other industrial uses. After all, zoning exists for just this reason—to allow local residents to determine the character of their community.
Fortunately, the Pennsylvania courts have agreed. When the seven towns (along with the Delaware Riverkeeper Network, and a Pennsylvania health professional) fought back by challenging the law in the Pennsylvania Commonwealth Court, that court quickly declared the law to be unconstitutional. The Pennsylvania Supreme Court’s decision yesterday affirms that decision, and marks the second (and final) nail in Act 13’s coffin. (To read the amicus or “friend of the court” brief NRDC filed in the Supreme Court on behalf of Pennsylvania municipalities, see here).
So, at this point, you might have some questions:
What does this mean for Pennsylvania municipalities?
Pennsylvania municipalities can now continue to exercise the same traditional land use authority over fracking that they long have enjoyed over all other industrial activities (such as, say, an iron smelter). In other words, towns can take commonsense protective measures like excluding noisy drill rigs, noxious waste pits, and other fracking activities out of places where they clearly don’t belong—like in residential neighborhoods, sensitive agricultural areas, or next door to a school or hospital. Although the exact extent of municipal authority is not quite clear in Pennsylvania, it may also mean that, where there are active wells, towns can control traditional land use concerns, such as hours of operation, lighting, and noise.
What does this mean for the Pennsylvania legislature?
Often when a court strikes down a law, the legislature goes back to the drawing block to create a new law that achieves the same purpose without the same legal defect. And no doubt, with all of the oil and gas industry’s pressure to bear, the Pennsylvania legislature may try to do just that. But given the nature of the Court’s opinion, they may have a hard time of it.
This is because, while upholding the Commonwealth Court opinion (explained in my previous post), the Supreme Court chose a different rationale as to why Act 13 was unconstitutional. Namely, a plurality of the justices held that the law violated the Pennsylvania Constitution’s Environmental Rights Amendment,* which deserves to be quoted in full:
- “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”
Act 13 violates this constitutional right because, in the words of the plurality opinion, it is well demonstrated that “development of the natural gas industry in the Commonwealth unquestionably has and will have a lasting, and undeniably detrimental, impact on the quality of these core aspects of Pennsylvania’s environment.” Therefore, any act that demands the unprecedented expansion of this type of “development with such an immediate, disruptive effect upon how Pennsylvanians live their lives” will always be unconstitutional.
Accordingly, it would be difficult, if not impossible for the Pennsylvania legislature to pass another act as sweeping or as invasive as the zoning provisions of Act 13. If they did want to try another bite at the apple, however, the Court had this to say:
- "To comply with the constitutional command, the General Assembly must exercise its police powers to foster sustainable development in a manner that respects the reserved rights of the people to a clean, healthy, and esthetically-pleasing environment.”
What does this mean for other states dealing with the same home rule issues?
If you read this blog, you know that Pennsylvania is not the only state where municipalities are fighting for the fundamental community right to zone industrial fracking. Communities across the country have been standing up to big oil and gas for their right to determine their own fracking fate—whether through fighting unfair laws like Act 13, passing ballot measures that stop fracking in their borders, or other routes.
In other states, a number of home rule cases like this are currently pending in or making their way up to their respective high courts, and the decisions of fellow state supreme courts tend to be persuasive. Although yesterday’s opinion rests on an amendment unique to the Pennsylvania Constitution, the Court’s findings on the destructive nature of fracking and the important need for state legislatures to safeguard the health and environment their citizens from the wanton and unreasonable expansion of an industrial activity have universal application.
So is it time to celebrate?
Absolutely! Although the fight for home rule over fracking activities rages on, we should all take some time over the holidays to raise a glass to all those who fought hard to make yesterday’s opinion possible, and to the triumph of common sense over reckless and unchecked expansion of fracking.
UPDATE FEB 24, 2014 — The book is now officially closed on the zoning provisions of Act 13. For those who have been following the case, you’ll know that the Corbett administration filed a petition for reconsideration of the Court’s decision just after the New Year, essentially asking the Court for a second bite at the apple. Last Friday, the Court denied that petition by a 5 to 1 vote, thus removing any remaining doubt that the zoning provisions of Act 13 are now dead letter (because the decision is based on state law, an appeal to the U.S. Supreme Court is near-impossible). In the words of one of the Plaintiffs' attorneys, Jordan Yeager:
- "The Supreme Court’s decision in striking down Act 13 was historic and vital for protecting Pennsylvania’s communities. The Corbett administration asked for a do-over and the Court said 'no.'"
The case now goes back to the Commonwealth Court, where that court will decide the fate of other provisions of Act 13, such as the medical “gag order” provision, which requires doctors to sign a confidentiality agreement in order to access information about proprietary frack chemicals that their patients may be exposed to.
*The holding with respect to the Environmental Rights Amendment was only joined by three out of the four justices who struck down the zoning provisions of the law. The fourth joined in declaring the law unconstitutional, but pursuant to the reasoning of the Commonwealth Court. Accordingly, the Environmental Rights Amendment portion of the opinion does not have the same precedential value a normal majority opinion would, although it is likely to be highly persuasive to lower Pennsylvania courts.