Steptoe & Johnson PLLC: PA Court Delays Act 13's Preemption of Local Zoning Ordinances

By Russell L. Schetroma

On April 11, 2012, a senior judge of the Pennsylvania Commonwealth Court entered a preliminary injunction deferring the effective date of the provisions of Pennsylvania's Act 13 of 2012 affecting the authority of local governments to regulate oil and gas operations for an additional 120 days.  The injunction was entered in a proceeding brought by various municipalities seeking to have the entire act declared to be invalid.  That action continues.  Pennsylvania's Commonwealth Court acts as the court of original jurisdiction, or trial court, for lawsuits filed by or against the Commonwealth, and the intermediate appellate court for appeals from state and local agency and government actions.

Senior Judge Quigley rationalized his action as follows: 

For purposes of the preliminary injunction only, the Court is satisfied that petitioners have standing to challenge governmental activity that would otherwise go unchallenged, i.e. the effect of Act 13 as it relates to municipalities' ability to comply with Act 13 within 120 days. See Application of Biester, 487 Pa. 438, 409 A.2d 848 (1979) [enhanced version available to lexis.com subscribers].

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While the ultimate determination on the constitutionality of Act 13 is not presently before the Court, the Court is of the view that municipalities must have an adequate opportunity to pass zoning laws that comply with Act 13 without the fear or risk that development of oil and gas operations under Act 13 will be inconsistent with later validly passed local zoning ordinances. For that reason, pre-existing ordinances must remain in effect until or unless challenged pursuant to Act 13 and are found to be invalid. To the extent that Chapter 33 or any other provision of Act 13 may be interpreted to immediately pre-empt pre-existing local ordinances, a preliminary injunction is issued pending further order Of Court.

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Based on in-chambers argument of counsel and as noted above, the Court concludes that there is an immediate and irreparable risk of harm to the municipalities that development of oil and gas operations under Act 13 may be incompatible with later validly passed zoning ordinances. This harm results in greater injury to the municipalities than to the Commonwealth. Further, other interested parties, i.e. the "oil and gas industry," will not be substantially harmed by the injunction because they may continue to proceed under current local ordinances to develop oil and gas operations, and the public interest is not harmed because the Court is only enjoining application of Chapter 33 of Act 13 while the remainder of Act 13 becomes effective. An injunction further restores the status quo, as the oil and gas Industry may continue to proceed under current local ordinances. While the court is not convinced that petitioners' likelihood of success on the merits is high, it has weighed this factor against the other prerequisites for a preliminary injunction and concludes the remaining factors compel issuance of an injunction. Cf. Pa. Public Utility Comm'n v. Process Gas Consumer Group, 502 Pa. 545, 467 A.2d 805 (1983) [enhanced version available to lexis.com subscribers].

A result of the order is that the oil and gas industry continues to bear costs and additional regulations imposed by Act 13, but receives none of the protection from burdensome and inconsistent municipal regulation that the Act was intended to provide.

Judge Quigley required the successful parties to post a $1,000 bond.  

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