By Russell L. Schetroma and Nathaniel I. Holland
In a 4-3 decision [enhanced version available to lexis.com subscribers], the Pennsylvania Commonwealth Court struck down portions of the state's new law - dubbed Act 13 - governing Marcellus shale activities as unconstitutional. In their decision, the Court ruled that the restrictions on local zoning violated constitutional due process and thereby nullified those provisions in Act 13.
In March, a cadre of petitioners including a handful of municipalities, a physician and an environmental advocacy group filed a twelve-count petition for review arguing that sections of the Act are unconstitutional. They claimed that the Act's zoning provisions make it difficult for local governments to protect the interests of their citizens and grants favor to energy producers. They also alleged that Act 13 would require them to modify existing zoning laws in conflict with development plans, and that its setback provisions and requirements for municipalities are "unconstitutionally vague."
The Court first found that the municipalities and officials had standing to challenge the Act, while dismissing the remaining environmental advocates and physician for lack of standing. The Court also preliminarily ruled that the dispute was justiciable, as it did not involve a political issue. The Court then ruled in favor of the petitioners claims that the preemption of local zoning violated substantive due process and exceeded the Commonwealth's police power.
In its dissent, the minority contended that the restrictions on local zoning did not violate any constitutional rights, and that the surface use regulations under the Act strike a balance between the need to harvest natural resources and imposing restrictions on operations based on type, location, and noise level.
The Court's decision also nullified a section of the Act pertaining to setback waivers issued by the PA Department of Environmental Protection (DEP). The Court found that the Act provides insufficient guidance to the DEP as to when waivers may be granted. The Court stated that its decision did not preclude the General Assembly from amending the Act to clarify any ambiguities. The Court granted the Commonwealth's remaining preliminary objections and dismissed the rest of petitioners' claims.
We expect that the Commonwealth will appeal the decision to the PA Supreme Court.
Read the full decision here. The dissenting opinion begins on page 58.
Russell L. Schetroma focuses his practice in the areas of energy and oil and gas law.
Nathaniel I. Holland focuses his practice in the area of energy transactional law.
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