The Pennsylvania Supreme Court heard oral argument yesterday on the constitutionality of provisions of Act 13, a recently enacted state law that would virtually eliminate all local zoning authority to control the location of fracking activities—even in traditionally protected areas such as residential neighborhoods, prime agricultural land, or school zones. The case comes as an appeal by Pennsylvania state agencies and officials of a decision by the Pennsylvania Commonwealth Court declaring those provisions unconstitutional and preventing them from taking effect. (To read the amicus or “friend of the court” brief NRDC filed in this case on behalf of Pennsylvania municipalities, see here).
In defending the law, the state argued that the citizens of Pennsylvania do not have a fundamental right to be free of “incompatible land uses” (i.e. an activities or structures that don’t fit in with a particular zone, such as industrial fracking activities in a residential zone). The state further contended that choice made by the legislature in passing Act 13—in essence, the choice to rezone the state to allow fracking nearly everywhere—is a matter of state policy, and not a matter of law that the court has the authority to second-guess.
In response, attorneys for the seven Pennsylvania towns challenging the act echoed the reasoning of the Commonwealth Court in arguing that “it is the role of the court to address whether the legislature went too far.” An act which allows the industrialization of all Pennsylvania communities without respect to those communities’ individual character or resources, they continued, is simply an unconstitutional use of the state’s zoning power. (For a more in depth explanation of the Commonwealth Court decision see here).
All of this comes as the state is putting some very visible pressure on the towns daring to challenge the constitutionality of the Act. This week, the Pennsylvania Public Utility Commission (PUC) distributed proceeds from the state’s new “impact fee” imposed on gas wells, but conspicuously withheld payments from four towns—Cecil, Mt. Pleasant, Robinson, and South Fayette—all of which are parties in the Act 13 litigation. The impact fee, another component of Act 13, is designed to help towns offset some of the damage from Marcellus wells (e.g. road damage from tanker trucks or pollution from well sites), such as that from the 100-plus wells located in these four towns. In total, the state is withholding $986,000 from the four towns.
Whether the state has the legal authority to withhold these funds is doubtful. According to the Act itself, the state can only withhold funds after “the [PUC], the Commonwealth Court or the Supreme Court issues an order that a local ordinance violates” the zoning provisions of Act 13 or other state law. And while the zoning ordinances of the four towns have been challenged by industry as violating the zoning provisions of Act 13, neither the PUC nor the courts have issued an order making that finding. Furthermore, since those zoning provisions are the same ones declared unconstitutional by the Commonwealth Court, the state’s actions in withholding the funding is highly questionable.
NRDC supports the rights of these towns and others to determine if and where industrial fracking occurs within their borders, free from pressure or unlawful interferance by state agencies. And as the battle for home rule rages on in Pennsylvania, we will continue to fight for these rights.
UPDATE 10.23.12: Late last week, the PUC issued an order that the zoning ordinance of South Fayette Township conflicts with the (presently unconstitutional) zoning provisions of Act 13. As noted, this move raises serious legal questions about whether the state may withhold funds if the Pennsylvania Supreme Court ultimately upholds the decision of the Commonwealth Court declaring the zoning provisions of Act 13 unconsitutional.