Court rules part of Act 13 unconstitutional

Posted July 27, 2012

Observer Reporter
By Brad Hundt

Pennsylvania’s Commonwealth Court ruled Thursday that the zoning provisions of Act 13, the state’s oil and gas drilling law, are unconstitutional.

In a 54-page opinion written by President Judge Dan Pellegrini, the court decided that the zoning regulations set forth in Act 13, which create uniform standards throughout Pennsylvania and allow drilling and related industries in all zoning districts, violate due process proceedings because they do not protect the interests of those living near drilling sites, alter the character of neighborhoods and create “irrational classifications.”

Pellegrini wrote, “the Legislature could make similar findings requiring coal portals, tipples, washing plants, limestone and coal strip mines, steel mills, industrial chicken farms, rendering plants and fireworks plants in residential zones advancing those interests in their development. It would allow the proverbial pig in the parlor instead of the backyard.’”

The zoning provisions were stricken in response to a suit filed in April by Cecil, Robinson, Peters and Mt. Pleasant townships in Washington County, along with South Fayette Township in Allegheny County, Nockamixon Township and the borough of Yardley in Bucks County, the Delaware Riverkeeper Network and Dr. Mehernosh Khan of Monroeville. In their complaint, they argued that Act 13’s zoning provisions were unconstitutional because they stripped municipalities of their zoning and land-use planning rights.

It was filed about six weeks after the General Assembly approved Act 13 and Gov. Tom Corbett signed the measure into law. Under Act 13, communities would have had to bring oil and gas drilling ordinances they had created into compliance with the law. However, due to the suit, the court issued a preliminary injunction giving them more time to bring their ordinances up-to-date. The injunction was due to expire Aug. 14.

Because of the Commonwealth Court decision, local ordinances can remain intact, according to John Smith, the solicitor for Cecil and Robinson townships. He was among the three attorneys who argued the case before the court in June.

“Local ordinances will remain on the books and in place,” Smith said. “Our municipal clients are thrilled with the decision. They have maintained from day one that portions of Act 13 were unconstitutional and the court agreed with their interpretation.”

He added, “The citizens of Pennsylvania owe a debt of gratitude to these municipal leaders who fought to protect their rights. It’s a great day for local governments and Pennsylvania.”

That notion was seconded by Brian Coppola, chairman of the board of supervisors in Robinson Township. “We feel vindicated,” he said. “We just dodged a major bullet. I think everybody around the state should be breathing a sigh of relief. It undermined zoning to the point where zoning would be gone in the state.”

Though the court ruled in their favor on only four of the 12 counts in the petition, the four counts represented the primary issues at stake. They found the zoning provisions were “an improper exercise of the commonwealth’s police power,” in the first count, “an unconstitutional use of zoning districts” in the second count, prevented communities from following or creating comprehensive plans or zoning ordinances in the third count, and, in the eighth count, that Act 13 delegated power to Pennsylvania’s Department of Environmental Protection without definitive standards.

A nine-page dissent written by Judge P. Kevin Brobson took issue with the majority’s decision on the zoning provisions, and the “pig in the parlor” analogy: “The problem with the majority’s analysis is that this particular pig can only operate in the parts of the commonwealth where its slop can be found . . . Oil and gas deposits can exist in a residential district just as easily as they might exist in an industrial district. What a local municipality allows, through its comprehensive plan, to be built above ground does not negate the existence and value of what lies beneath.”

The decision could be appealed to Pennsylvania’s Supreme Court. Whether or not that will happen, “it’s really too early,” according to Jennifer Kocher, the press secretary for the Public Utility Commission, one of the suit’s respondents, along with Pennsylvania Attorney General Linda Kelly and the DEP. “We’re still digesting the decision.”

What remains unclear is how the ruling will affect the impact fees that will be doled out to communities under Act 13. State Sen. Tim Solobay, D-Canonsburg, pointed out that the impact fees could be jeopardized because they hinge on compliance with the law, and that the Legislature might have to modify Act 13 when it reconvenes in the fall.

“There are still a lot of things that need to be looked at,” Solobay said.

The lawmaker supported Act 13 earlier this year, and said it created standards in the communities where drilling was happening without any local ordinances on the books at all. “There was nothing out there before and everyone could do what they wanted.” He is also worried that if too-stringent regulations are placed on the burgeoning Marcellus Shale natural gas industry, some companies that would be interested in doing business here might look instead to neighboring states like Ohio or West Virginia.

“These companies aren’t going to create things that are going to be a public relations nightmare for themselves,” Solobay said.

The natural gas industry supported Act 13, saying it gave them certainty and predictability. On Thursday, Kathryn Klaber, president of the Marcellus Shale Coalition, a pro-industry advocacy group, released a statement saying “lack of uniformity has long been an Achilles’ heel for Pennsylvania and must be resolved if the commonwealth is to remain a leader in responsible American natural gas development and reap the associated economic, environmental and national security benefits.”

Solobay’s colleague, state Rep. Jesse White, D-Cecil, was happier with the decision. He did not support Act 13 when it came up for a vote in February and said “a clear message has been sent: Our constitutional protections are not for sale.”