A First Take on Robinson Township v. Commonwealth The Pennsylvania Supreme Court’s Sweeping Ruling Invalidates Act 13’s Statewide Oil and Gas Development Land Use Regime and Heralds a New Era in Pennsylvania Environmental Litigation December 24, 2013 On December 19, the Pennsylvania Supreme Court issued its long-awaited decision in Robinson Township, et al. v. Commonwealth, 63 MAP 2012, resolving a variety of constitutional challenges to Act 13 of 2012, an amendment to the Pennsylvania Oil and Gas Act that, among other things, implemented a uniform statewide land use regime for oil and gas development. See 58 Pa. C.S. §§ 2301-3504. In a fragmented 4-2 decision, the Court invalidated certain of Act 13’s core provisions, including notably its implementation of statewide zoning standards for oil and gas operations. The decision will dramatically impact the oil and gas industry in many ways, and assuredly will require the industry to comply with a variety of differing regulations. It may even prompt efforts by some aggressive municipalities to ban drilling altogether. The decision sweeps more broadly, however: it “constitutionalizes” local zoning and limits state legislative oversight over local land use regulation. Indeed, depending on how ensuing cases interpret broad language in the three-justice plurality opinion, the decision may greatly expand judicial review over all legislative and government actions that have any arguable impact on Pennsylvania’s natural or historical resources. In the immediate term, it will almost certainly lead to a dramatic expansion of environmental litigation, especially with respect to Marcellus and Utica Shale development, but also more broadly. Act 13’s Imposition of Uniform Statewide Rules One of the most dramatic economic changes of the past decade in Pennsylvania has been the development of unconventional oil and gas resources (extracted from the Marcellus Shale formation and, increasingly, from the deeper Utica Shale). Despite the rapid expansion of oil and gas development, producers frequently complained about inconsistent local approaches to oil and gas production. While the Pennsylvania Supreme Court in 2009 held that municipalities could not regulate those aspects of drilling that were already within the scope of the Oil and Gas Act (for example, by requiring a local drilling permit or bond or regulating the plugging of inactive wells), see Range Resources – Appalachia v. Salem Twp., 964 A.2d 569 (Pa. 2009), the Court also held that the Oil and Gas Act did not preempt local zoning ordinances and that local zoning ordinances could limit the location of wells to specified zones, see Huntley & Huntley v. Borough of Oakmont, 964 A.2d 855 (Pa. 2009). As a result, while municipalities could not regulate the details of drilling and production activities, they could effectively declare, on a piecemeal basis, that large tracts of the Commonwealth would be “off limits” to oil and gas activities. Act 13 – a centerpiece of Governor Tom Corbett’s legislative agenda – was in large part an effort to address this concern and to ensure uniform treatment of oil and gas operations throughout Pennsylvania. Act 13 comprehensively amended the Oil and Gas Act, repealing parts of the Act and adding new chapters, including Chapter 32, which describes the well-permitting process and defines statewide limits on oil and gas development, and Chapter 33, which prohibits local regulation of oil and gas operations, including environmental legislation, and requires Commonwealth-wide uniformity for local zoning ordinances dealing with oil and gas. Among other things, Act 13: required municipal zoning ordinances to allow oil and gas wells, pipelines and impoundments in every zoning district, with setback requirements to limit production activities in high-density areas in lieu of categorical prohibitions, 58 Pa. C.S. § 3304(b)(5)-(6); required ordinances to allow pipeline compressor stations and natural gas processing plants in industrial and agricultural zones, subject to setback and noise restrictions, id. § 3304(b)(7)-(8); prohibited municipalities from treating oil and gas operations differently from other land uses, see id. § 3304(b)(2)-(3); and imposed limits on the amount of time local officials could take in ruling on applications (30 days for completed applications for permitted uses, and 120 days for conditional uses), id. § 3304(b)(4). Act 13 further defined minimum setback requirements, limiting oil and gas operations near streams and wetlands, id.; see also § 3215(b) (1)-(3)), but also gave the Department of Environmental Protection (DEP) the authority to waive these distance restrictions if the operator identified additional measures, facilities or practices to protect the waters of the Commonwealth, id. § 3215(b)(4). The stated purpose of Act 13 is to “permit optimal development of oil and gas resources of this Commonwealth” while at the same time protecting “natural resources, environmental rights and values secured by the Constitution of Pennsylvania.” 58 Pa. C.S. § 3202. The Commonwealth Court’s Ruling Act 13, although welcomed by oil and gas operators, was controversial from the outset, and almost immediately drew constitutional challenges from a variety of sources. This suit was brought by seven municipalities and municipal officials objecting to the override of local zoning ordinances, the Delaware Riverkeeper Network and its appointed “riverkeeper,” and a physician complaining about restrictions on the disclosure of the constituents of proprietary well stimulation fluids. It was filed in the first instance in the Pennsylvania Commonwealth Court, a specialized court with statewide trial and appellate jurisdiction over (among other things) actions against the Commonwealth. The plaintiffs argued that Act 13 violated the Pennsylvania Constitution, and in particular those provisions of the Constitution relating to the inherent rights of mankind, eminent domain and natural resources, among others. The plaintiffs also argued that Act 13 violated the separation of powers doctrine and the due process clause of the United States Constitution. The matter proceeded on an expedited track: the plaintiffs moved for summary relief, and the Commonwealth filed preliminary objections and a cross-motion for summary relief. The Commonwealth Court – by a 4-3 majority – held Act 13 unconstitutional in part and enjoined application of certain sections of Chapter 32 and Chapter 33. Robinson Twp. v. Commonwealth, 52 A.3d 463 (2012). In particular, the Commonwealth Court found that Act 13’s statewide land use regime violated principles of substantive due process secured by the Pennsylvania and United States Constitutions because the Act required local governments to amend existing zoning ordinances without regard for basic zoning principles, and thus (in the Commonwealth Court’s view) “allows incompatible uses in zoning districts and does not protect the interests of neighboring property owners from harm, alters the character of the neighborhood, and makes irrational classifications.” 52 A.3d at 485. The Commonwealth Court also unanimously held that Section 3215(b)(4), empowering the DEP to grant variances from stream and wetland buffer zone requirements, unconstitutionally delegated to DEP the authority to make legislative policy judgments reserved to the General Assembly, in that it failed to provide sufficient direction to guide DEP’s decision-making. Id. at 490-93. The Commonwealth Court rejected the remaining challenges to other aspects of Act 13. Of special relevance, in light of the Supreme Court’s ultimate holding, the Commonwealth Court held that Act 13 did not violate Article I, Section 27 of the Pennsylvania constitution, which guarantees the “right to clean air, pure water, and . the preservation of the natural, scenic, historic and esthetic values of the environment,” and which obligates the Commonwealth to “conserve and maintain them for the benefit of all the people.” Id. at 488-89. Three judges dissented, believing that the majority opinion wrongly “reaches a legal conclusion that any zoning ordinance that allows a particular use in a district that is incompatible with the other uses in that same district is unconstitutional.” Id. at 496 (Brobson, J., dissenting). To the dissenting judges, “[t]he desire to organize a municipality into zones made up of compatible uses is a goal, or objective, of comprehensive planning” but “it is not an inflexible constitutional edict.” Id. In short, the dissent acknowledged that the plaintiffs “have legitimate concerns and questions about Act 13,” but believed that “it is not our role to pass upon the wisdom of a particular legislative enactment.” Id. at 498. [1] The Commonwealth (including the Attorney General, the Public Utility Commission and the Department of Environmental Protection) and the plaintiffs all cross-appealed, each side challenging those portions of the judgment on which it did not prevail. The matter was promptly accepted for review, and was briefed and argued in less three months after the Commonwealth Court’s decision. More than a year passed before the Supreme Court rendered its ruling, however. The Supreme Court’s Ruling The 4-2 decision repudiated the Commonwealth’s position at almost every turn, affirming the Commonwealth Court’s view that Act 13’s statewide zoning rules were unconstitutional. [2] The majority split 3-1 on the fundamental rationale, however, leaving no majority opinion articulating a consistent view of the constitutional limitations