In February 2012, Governor Tom Corbett of Pennsylvania signed Act 13 into law. Act 13 amended the states previous Oil and Gas Act, 58 P.a.C.S. §§ 601.101 – 601.605, and provided significant changes regarding natural gas drilling operations. Portions of the Act essentially allowed the state government to supersede local governmental control and mandate local ordinance changes to accommodate the natural gas industry. Under Act 13, local governments lose their ability to zone and restrict oil and gas drilling and must instead defer to statewide policies on zoning regulations.
The intent of Act 13 is to permit optimal development of the Commonwealth’s oil and gas resources, to protect the safety of personnel and facilities in covered industries, to protect the safety and property rights of persons residing in areas hosting oil and gas operations, and to protect natural resources, environmental rights and values secured by the Constitution of Pennsylvania. See 58 Pa.C.S. § 3202 (Declaration of purpose of chapter).
However, in March 2012, the constitutionality of Act 13 was challenged on several grounds. As expected, the case climbed the judicial ladder and December 19, 2013, the Pennsylvania Supreme Court issued a decision finding several provisions of Act 13 unconstitutional. See Robinson Township v. Pennsylvania’s Pub. Util. Comm’n, No. 63 MAP 2012 (Pa. Dec. 19, 2013).
The Courts decision relied heavily on the 1971 Environmental Rights Amendment to the Pennsylvania Constitution. In part, the amendment provides,
“[t]he 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 Supreme Court’s decision found portions of section 3215 of Act 13 unconstitutional as well as found sections 3304 and 3303 in violation of the Environmental Rights Amendment.
Section 3215 allows the Department of Environmental Protection to grant waivers for setback requirements from water sources even over the objection of the municipality. Section 3304 required municipalities that had land use ordinances to conform those ordinances to a set of uniform standards set out in the statute. Section 3303 declared that all local regulation of oil and gas activities was preempted. All, as mentioned, were found to be in violation of Pennsylvania’s Constitution.
Act 13 also included an important provision regarding impact fees on drilled wells. The constitutionality of this provision was not at issue.
In the end, this historic decision is a win for local governments and municipalities but also acts as a major strike against the oil and gas industry. Local governments are able to retain their power to regulate and zone oil and gas production like they do other activities.
A copy of the decision can be found through the Pittsburgh Post-Gazette’s web-page or by clicking here.