Pennsylvania’s Act 13 of 2012, signed in February of this year, revised the Commonwealth’s Oil and Gas Act to accommodate and address the increased activity associated with the extraction of natural gas from the Marcellus Shale.  It included provisions for impact fees, environmental protections, and set-back restrictions.  In addition, it also required local municipalities to adhere to uniform zoning laws that would provide for the development of oil and gas resources in the Commonwealth.  Yesterday, in the case of Robinson Township v. Commonwealth of Pennsylvania, No. 284 M.D. 2012 (July 26, 2012), the Commonwealth Court in a 4-3 decision held that provision of the law to be unconstitutional.

The Petitioners challenging the zoning uniformity provisions of Act 13 included several municipalities, a public interest group, a public interest ombudsman and two individuals in their capacity as councilmembers of a municipality and as citizens.  Standing was the first issue addressed by the Court.  In a lengthy review of Pennsylvania law on the subject, the Court held that the municipalities did have standing because Act 13, and particularly Section 3304 requiring the amendment of local zoning ordinances, “has a substantial, direct and immediate impact on the municipalities’ obligations” and because “the municipalities’ claims that they are required to pass unconstitutional zoning amendments are inextricably bound with those of the property owners’ rights [who] even the Commonwealth admits . . . would have standing.”  Along these lines, the Court also held that the councilmembers had standing because they would be required to vote on zoning amendments they believed to be unconstitutional.  On the other hand, the Court found that neither the Delaware Riverkeeper Network,  the ombudsman, or a medical doctor who was also a Petitioner had standing, primarily because of an absence of a direct or immediate threat to their own or any member’s interest.  The court thereafter also rejected the Commonwealth’s claims that the case was a non-justiciable one, bluntly stating that all the Court had been asked to do “is to determine whether a portion of Act 13 is constitutional or not, a judicial function.”

Having found that it could hear the challenges, the Court moved on to the substance of the matter.  After a discussion about the constitutional standards that zoning ordinances must meet, the Court found that Section 3304, the provision that pre-empts local zoning, and those provisions of Act 13 that implement Section 3304, were held to be an unconstitutional violation of substantive due process.  As the Court explained:

by requiring municipalities to violate their comprehensive plans for growth and development, 58 Pa. C.S §3304 violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications – irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height of structures, screening and fencing, lighting and noise.

The Court then dispensed with several other of the Petitioners’ bases for challenging Act 13, but found one further provision unconstitutional.  Specifically, Section 3512(b)(4) allows the PADEP discretion in permitting variances from the setback and other requirements Act 13 places on well locations.  However, the Commonwealth Court found the provision “unconstitutional because it gives DEP the power to make legislative policy judgments otherwise reserved for the General Assembly.”  It expressly left open, however, the possibility that the statute could be amended to provide sufficient guidance to the DEP in exercising its power to waive the well location restrictions.

There is little doubt that this decision will be appealed by the Commonwealth as the interests at stake are great.  So this is certainly a case to watch.

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