PA Environmental Council On PA Supreme Court Act 13 Drilling Law Opinion

The PA Environmental Council issued this statement Friday on the December 19 decision by the PA Supreme Court declaring several provisions of the Act 13 Marcellus Shale drilling law unconstitutional.  The text of the statement follows--

Last month the Pennsylvania Supreme Court issued a landmark opinion in the case of Robinson Township, et al v. Commonwealth of Pennsylvania, et al. Central to the Court’s ruling in striking down multiple provisions of Act 13 of 2012 was invigorating the Environmental Rights Amendment. As the court noted in its decision, the constitutional ruling is unprecedented in Pennsylvania.

The court’s ruling has been enthusiastically embraced by citizens, local governments, and environmental organizations throughout Pennsylvania. We too are encouraged by the court’s move to galvanize protection of public resources, even beyond the Environmental Rights Amendment’s applicability to Act 13.

However, all pioneering standards demand thoughtful analysis and careful consideration. The case has now been remanded to the Commonwealth Court for further review, and we do not yet know what this new standard will ultimately mean for Pennsylvania, its environment, and its citizens.

PEC wholeheartedly supports the state Supreme Court’s conclusion with respect to invalidating Act 13’s unilateral preemption of local land use controls. In fact, our 2010 Policy Report concerning the need to improve management of shale gas development in Pennsylvania, stated:

“Every effort should be made to assess potential cumulative impacts from proposed well development; not only from individual sites but also from a broader perspective. Communities in proximity to well and infrastructure development should be afforded input into the review process to ensure consistency between agency action and local protection efforts. This process should be well understood by all parties, and be fair and timely.”

PEC opposed the preemption provisions in the legislative vehicle (House Bill 1950) that ultimately became Act 13, and we applauded the Commonwealth Court’s ruling in 2012 to invalidate them.

We also agree, as we did with the Commonwealth Court ruling, with the Supreme Court’s invalidation of Act 13’s waiver language with respect to setback provisions.

Act 13 fell short of the standards advanced by PEC and other conservation partners before the General Assembly and the Governor’s Marcellus Shale Advisory Commission, which would have granted the Department of Environmental Protection (DEP) the authority to require protective measures in addition to minimum setback standards when warranted. Setbacks are critical to ensuring that an appropriate boundary is established between natural gas activities and resources such as streams and water supplies.

We acknowledge that there may be instances where waivers to setbacks are justified and provide an environmental net benefit, but the law should be clear that DEP has authority to make such determinations based on unprejudiced criteria.

PEC also applauds the Supreme Court’s decision to vitalize the Environmental Rights Amendment of Pennsylvania’s Constitution – more than forty years after its adoption by the citizens of Pennsylvania.

This is a new day for resource protection in Pennsylvania, but with it comes the reality that every environmental and land use law or regulation passed by state and local government is now subject to heightened inquiry and potential challenge.

In principle, this is a win for the environment and for all Pennsylvanians.  But in practice, it will take some time to reflect and examine the full effect of the Supreme Court’s decision on future land use practices.

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