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[J-127A-D-2012] in the Supreme Court of Pennsylvania Middle District

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[J-127A-D-2012] in the Supreme Court of Pennsylvania Middle District [J-127A-D-2012] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. ROBINSON TOWNSHIP, WASHINGTON COUNTY, : No. 63 MAP 2012 PA; BRIAN COPPOLA, INDIVIDUALLY AND IN HIS : OFFICIAL CAPACITY AS SUPERVISOR OF : ROBINSON TOWNSHIP; TOWNSHIP OF : NOCKAMIXON, BUCKS COUNTY, PA; TOWNSHIP : Appeal from the Order and Opinion of OF SOUTH FAYETTE, ALLEGHENY COUNTY, PA; : the Commonwealth Court at No. 284 PETERS TOWNSHIP, WASHINGTON COUNTY, : MD 2012, dated July 26, 2012 PA; DAVID M. BALL, INDIVIDUALLY AND IN HIS : OFFICIAL CAPACITY AS COUNCILMAN OF : 52 A.3d 463 (Pa. Cmwlth. 2012) PETERS TOWNSHIP; TOWNSHIP OF CECIL, : WASHINGTON COUNTY, PA; MOUNT PLEASANT : TOWNSHIP, WASHINGTON COUNTY, PA; : BOROUGH OF YARDLEY, BUCKS COUNTY, PA; : DELAWARE RIVERKEEPER NETWORK; MAYA : VAN ROSSUM, THE DELAWARE RIVERKEEPER; : MEHERNOSH KHAN, M.D. : : : v. : : : COMMONWEALTH OF PENNSYLVANIA; : PENNSYLVANIA PUBLIC UTILITY COMMISSION; : ROBERT F. POWELSON, IN HIS OFFICIAL : CAPACITY AS CHAIRMAN OF THE PUBLIC : UTILITY COMMISSION; OFFICE OF THE : ATTORNEY GENERAL OF PENNSYLVANIA; : KATHLEEN KANE, IN HER OFFICIAL CAPACITY : AS ATTORNEY GENERAL OF THE : COMMONWEALTH OF PENNSYLVANIA; : PENNSYLVANIA DEPARTMENT OF : ENVIRONMENTAL PROTECTION; and E. : CHRISTOPHER ABRUZZO, IN HIS OFFICIAL : CAPACITY AS SECRETARY OF THE : DEPARTMENT OF ENVIRONMENTAL : PROTECTION : : : APPEAL OF: PENNSYLVANIA PUBLIC UTILITY : COMMISSION; ROBERT F. POWELSON, IN HIS : OFFICIAL CAPACITY AS CHAIRMAN OF THE : PUBLIC UTILITY COMMISSION; PENNSYLVANIA : DEPARTMENT OF ENVIRONMENTAL : PROTECTION; AND E. CHRISTOPHER ABRUZZO , : IN HIS OFFICIAL CAPACITY AS SECRETARY OF : THE DEPARTMENT OF ENVIRONMENTAL : ARGUED: October 17, 2012 PROTECTION : : : ROBINSON TOWNSHIP, WASHINGTON COUNTY, : No. 64 MAP 2012 PA; BRIAN COPPOLA, INDIVIDUALLY AND IN HIS : OFFICIAL CAPACITY AS SUPERVISOR OF : ROBINSON TOWNSHIP; TOWNSHIP OF : NOCKAMIXON, BUCKS COUNTY, PA; TOWNSHIP : Appeal from the Order and Opinion of OF SOUTH FAYETTE, ALLEGHENY COUNTY, PA; : the Commonwealth Court at No. 284 PETERS TOWNSHIP, WASHINGTON COUNTY, : MD 2012, dated July 26, 2012 PA; DAVID M. BALL, INDIVIDUALLY AND IN HIS : OFFICIAL CAPACITY AS COUNCILMAN OF : 52 A.3d 463 (Pa. Cmwlth. 2012) PETERS TOWNSHIP; TOWNSHIP OF CECIL, : WASHINGTON COUNTY, PA; MOUNT PLEASANT : TOWNSHIP, WASHINGTON COUNTY, PA; : BOROUGH OF YARDLEY, BUCKS COUNTY, PA; : DELAWARE RIVERKEEPER NETWORK; MAYA : VAN ROSSUM, THE DELAWARE RIVERKEEPER; : MEHERNOSH KHAN, M.D. : : : v. : : : COMMONWEALTH OF PENNSYLVANIA; : PENNSYLVANIA PUBLIC UTILITY COMMISSION; : ROBERT F. POWELSON, IN HIS OFFICIAL : CAPACITY AS CHAIRMAN OF THE PUBLIC : UTILITY COMMISSION; OFFICE OF THE : ATTORNEY GENERAL OF PENNSYLVANIA; : KATHLEEN KANE, IN HER OFFICIAL CAPACITY : AS ATTORNEY GENERAL OF THE : COMMONWEALTH OF PENNSYLVANIA; : PENNSYLVANIA DEPARTMENT OF : ENVIRONMENTAL PROTECTION; AND E. : CHRISTOPHER ABRUZZO, IN HIS OFFICIAL : CAPACITY AS SECRETARY OF THE : DEPARTMENT OF ENVIRONMENTAL : PROTECTION : : : APPEAL OF: OFFICE OF THE ATTORNEY : GENERAL OF PENNSYLVANIA; KATHLEEN : KANE, IN HER OFFICIAL CAPACITY AS : ATTORNEY GENERAL OF THE : ARGUED: October 17, 2012 COMMONWEALTH OF PENNSYLVANIA : : : [J-127A-D-2012] - 2 ROBINSON TOWNSHIP, WASHINGTON COUNTY, : No. 72 MAP 2012 PA; BRIAN COPPOLA, INDIVIDUALLY AND IN HIS : OFFICIAL CAPACITY AS SUPERVISOR OF : ROBINSON TOWNSHIP; TOWNSHIP OF : NOCKAMIXON, BUCKS COUNTY, PA; TOWNSHIP : Appeal from the Order and Opinion of OF SOUTH FAYETTE, ALLEGHENY COUNTY, PA; : the Commonwealth Court at No. 284 PETERS TOWNSHIP, WASHINGTON COUNTY, : MD 2012, dated July 26, 2012 PA; DAVID M. BALL, INDIVIDUALLY AND IN HIS : OFFICIAL CAPACITY AS COUNCILMAN OF : 52 A.3d 463 (Pa. Cmwlth. 2012) PETERS TOWNSHIP; TOWNSHIP OF CECIL, : WASHINGTON COUNTY, PA; MOUNT PLEASANT : TOWNSHIP, WASHINGTON COUNTY, PA; : BOROUGH OF YARDLEY, BUCKS COUNTY, PA; : DELAWARE RIVERKEEPER NETWORK; MAYA : VAN ROSSUM, THE DELAWARE RIVERKEEPER; : MEHERNOSH KHAN, M.D., : : Cross-appellants : : : v. : : : COMMONWEALTH OF PENNSYLVANIA; : PENNSYLVANIA PUBLIC UTILITY COMMISSION; : ROBERT F. POWELSON, IN HIS OFFICIAL : CAPACITY AS CHAIRMAN OF THE PUBLIC : UTILITY COMMISSION; OFFICE OF THE : ATTORNEY GENERAL OF PENNSYLVANIA; : KATHLEEN KANE, IN HER OFFICIAL CAPACITY : AS ATTORNEY GENERAL OF THE : COMMONWEALTH OF PENNSYLVANIA; : PENNSYLVANIA DEPARTMENT OF : ENVIRONMENTAL PROTECTION; AND E. : CHRISTOPHER ABRUZZO, IN HIS OFFICIAL : CAPACITY AS SECRETARY OF THE : DEPARTMENT OF ENVIRONMENTAL : PROTECTION, : : ARGUED: October 17, 2012 Cross-appellees : : : ROBINSON TOWNSHIP, WASHINGTON COUNTY, : No. 73 MAP 2012 PA; BRIAN COPPOLA, INDIVIDUALLY AND IN HIS : OFFICIAL CAPACITY AS SUPERVISOR OF : ROBINSON TOWNSHIP; TOWNSHIP OF : NOCKAMIXON, BUCKS COUNTY, PA; TOWNSHIP : Appeal from the Order and Opinion of OF SOUTH FAYETTE, ALLEGHENY COUNTY, PA; : the Commonwealth Court at No. 284 PETERS TOWNSHIP, WASHINGTON COUNTY, : MD 2012, dated July 26, 2012 PA; DAVID M. BALL, INDIVIDUALLY AND IN HIS : OFFICIAL CAPACITY AS COUNCILMAN OF : 52 A.3d 463 (Pa. Cmwlth. 2012) [J-127A-D-2012] - 3 PETERS TOWNSHIP; TOWNSHIP OF CECIL, : WASHINGTON COUNTY, PA; MOUNT PLEASANT : TOWNSHIP, WASHINGTON COUNTY, PA; : BOROUGH OF YARDLEY, BUCKS COUNTY, PA; : DELAWARE RIVERKEEPER NETWORK; MAYA : VAN ROSSUM, THE DELAWARE RIVERKEEPER; : MEHERNOSH KHAN, M.D., : : Cross-appellants : : : v. : : : COMMONWEALTH OF PENNSYLVANIA; : PENNSYLVANIA PUBLIC UTILITY COMMISSION; : ROBERT F. POWELSON, IN HIS OFFICIAL : CAPACITY AS CHAIRMAN OF THE PUBLIC : UTILITY COMMISSION; OFFICE OF THE : ATTORNEY GENERAL OF PENNSYLVANIA; : KATHLEEN KANE, IN HER OFFICIAL CAPACITY : AS ATTORNEY GENERAL OF THE : COMMONWEALTH OF PENNSYLVANIA; : PENNSYLVANIA DEPARTMENT OF : ENVIRONMENTAL PROTECTION; AND E. : CHRISTOPHER ABRUZZO, IN HIS OFFICIAL : CAPACITY AS SECRETARY OF THE : DEPARTMENT OF ENVIRONMENTAL : PROTECTION, : : ARGUED: October 17, 2012 Cross-appellees OPINION MR. CHIEF JUSTICE CASTILLE Decided: December 19, 2013 Mr. Chief Justice Castille announces the Judgment of the Court. Mr. Chief Justice Castille delivers the Opinion of the Court with respect to Parts I, II, IV, V, and VI(A), (B), (D)-(G), in which Mr. Justice Baer, Madame Justice Todd, and Mr. Justice McCaffery join, and delivers an Opinion with respect to Parts III and VI(C), in which Madame Justice Todd and Mr. Justice McCaffery join. [J-127A-D-2012] - 4 In this matter, multiple issues of constitutional import arise in cross-appeals taken from the decision of the Commonwealth Court ruling upon expedited challenges to Act 13 of 2012, a statute amending the Pennsylvania Oil and Gas Act (“Act 13”). 1 Act 13 comprises sweeping legislation affecting Pennsylvania’s environment and, in particular, the exploitation and recovery of natural gas in a geological formation known as the Marcellus Shale. The litigation proceeded below in an accelerated fashion, in part because the legislation itself was designed to take effect quickly and imposed obligations which required the challengers to formulate their legal positions swiftly; and in part in recognition of the obvious economic importance of the legislation to the Commonwealth and its citizens. The litigation implicates, among many other sources of law, a provision of this Commonwealth’s organic charter, specifically Section 27 of the Declaration of Rights in the Pennsylvania Constitution, which states: 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. PA. CONST . art. I, § 27 (the “Environmental Rights Amendment”). Following careful deliberation, this Court holds that several challenged provisions of Act 13 are unconstitutional, albeit the Court maJority affirming the finding of unconstitutionality is not of one mind concerning the ground for decision. This Opinion, representing the views of this author, Madame Justice Todd, and Mr. Justice McCaffery, finds that 1 Act No. 13 of Feb. 14, 2012, P.L. 87, eff. immediately (in part) and Apr. 16, 2012 (in part), 58 Pa.C.S. §§ 2301-3504. [J-127A-D-2012] - 5 several core provisions of Act 13 violate the Commonwealth’s duties as trustee of Pennsylvania’s public natural resources under the Environmental Rights Amendment; other challenges lack merit; and still further issues require additional examination in the Commonwealth Court. Mr. Justice Baer, in concurrence, concurs in the mandate, and Joins the MaJority Opinion in all parts except Parts III and VI(C); briefly stated, rather than grounding merits affirmance in the Environmental Rights Amendment, Justice Baer would find that the core constitutional infirmity sounds in substantive due process. 2 Accordingly, we affirm in part and reverse in part the Commonwealth Court’s decision, and remand for further proceedings consistent with specific directives later set forth in this Opinion. See Part VI (Conclusion and Mandate), infra. I. Background Before the Court are the direct appeals of the Commonwealth, by (a) the Office of the Attorney General and (former) Attorney General Linda L. Kelly, and (b) the Public Utility Commission and its Chairman Robert F. Powelson, and the Department of Environmental Protection and its (former) Secretary Michael L. Krancer (together, the “Commonwealth”). We also decide cross-appeals
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