In a victory for local control of oil and gas activity, or for environmentalists hoping to ban gas drilling altogether, or both, a Pennsylvania court struck down two major provisions of that state’s new oil and gas statute as unconstitutional.

Act 13 of the Pennsylvania legislature, signed into law in February 2012, significantly amended the Pennsylvania Oil and Gas Act. The new act generally preempts local regulation of oil and gas operations, with certain limited exceptions. Among other features, the act limits the ability of local governments to regulate oil and gas operations, superceding local ordinances designed to regulate development of oil and gas operations.

Robinson Township v Commonwealth of Pennsylvania was brought by seven townships to challenge the constitutionality of Act 13.

Section 3304 of the act says: “[a local ordinance] may not impose conditions, requirements or limitations on the construction of oil and gas operations that are more stringent than conditions, requirements or limitations imposed on construction activities for other industrial uses.” In other words – if the ordinance does not apply to construction of a manufacturing plant, then it may not only apply to oil and gas operations.

The act goes on: “[a local ordinance] shall authorize oil and gas operations, other than activities at impoundment areas, compressor stations and processing plants, as a permitted use in all zoning districts.” (my emphasis).

Section 3304 also requires that oil and gas operations be allowed in all zoning districts in the state. The plaintiffs argued that to allow this would go against the very logic of zoning regulations, i.e. the weighing of protecting public interests over an individual’s property right.

The court ruled that as a matter of law, Section 3304 violates due process because it allows incompatible uses in zoning districts and does not protect the interests of neighboring property owners from harm, alters the character of the neighborhood, and makes irrational classifications.”

Sec. 3215(b) establishes the minimum setback requirements for any well drilled in proximity to a “solid blue lined stream, spring or body of water.” Sec. 3215(b)(4) provides: “The [DEP] shall waive the distance restrictions upon submission of a plan identifying additional measures, facilities or practices to be employed during well site construction, drilling and operations necessary to protect the waters of this Commonwealth.”

The court ruled that Section 3215 violates the non-delegation doctrine of the state’s constitution because it empowers the DEP to waive setback requirements without providing standards that will direct the DEP when such waivers may be granted.

According to the court, the statute unconstitutionally authorized the DEP to grant waivers without clear directions from the General Assembly as to when a waiver would be proper, and that this vaguely worded statute was a delegation of legislative authority to the state agency.

The Commonwealth is seeking an expedited review by the Pennsylvania Supreme Court.  In the meantime, they can heat their homes and schools and factories with coal and foreign oil and power their cars with algae.