Author: Martin P. Averill
In Robinson Township v. Commonwealth of Pennsylvania, the Pennsylvania Supreme Court dealt a major blow to the energy industry. By a 4-2 decision the Court struck down a 2012 law (commonly known as “Act 13”) aimed at preventing municipal interference with oil and gas exploration.
Three different approaches
Interestingly, the precise rationale for the court’s decision was not agreed upon by a majority. Three justices concluded in a 162-page opinion that Act 13 violates a 1971 Environmental Rights Amendment to the Pennsylvania Constitution, which guarantees the right of citizens to “clean air and pure water, and to the preservation of natural, scenic, historic and esthetic values of the environment.”
Another justice concurred in the result but opined that Act 13 is unconstitutional because it violates substantive “due process of law” by preventing municipalities from protecting the rights of individual landowners within their jurisdiction from undue interference by neighboring landowners (here, from alleged harms caused by oil and gas exploration).
Two justices dissented on the basis that Act 13’s uniform standards for the oil and gas industry — including setback requirements, water protection measures and other limitations—were not an unconstitutional exercise of the state’s general police power to regulate the health, safety and welfare of its citizens. Of primary concern to the dissenters was the majority’s failure to accord the proper deference to the decisions of the state’s legislative branch—in other words, the age-old “judicial legislation” criticism—and the broader implications of the majority’s stance that local governments may lodge constitutional challenges against statewide legislation on behalf of individual citizens.
In the aftermath of Robinson Township, Pennsylvania’s prior law regarding oil and gas development will be in force. Pennsylvania jurisprudence prior to Act 13 memorialized a “how/where” distinction regarding local authority to govern the industry. Localities may regulate the “where” of development through their zoning powers, but may not regulate the “how” of development because the manner of conducting oil and gas exploration is expressly governed by the Pennsylvania Oil and Gas Act and regulations promulgated thereunder. This doctrine was most recently set forth in twin decisions of the Pennsylvania Supreme Court in 2009: Huntley & Huntley, Inc. v. Borough Council of Oakmont and Range Resources – Appalachia LLC v. Salem Township.