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Delaware Riverkeeper Network Secures Substantive Strength For  Constitutional Environmental Rights in Pennsylvania

Robinson Twp, Delaware Riverkeeper Network, et. al. v. Commonwealth of Pennsylvania
Delaware Riverkeeper Network Secures Substantive Strength For Constitutional Environmental Rights in Pennsylvania

Update:  On October 27, 2015, the Pennsylvania Supreme Court issued an order in the Act 13 setting the scope of oral argument on the issues that remain for the Court to decide. Oral argument is an opportunity for the Justices to have counsel discuss and answer specific questions or concerns that the Justices may have on the issues presented. The Court agreed to hear argument on Appellants’ cross-appeals addressing the physician gag rule, eminent domain, and the lack of notification of spills to private water supplies. Notably, the Court denied PUC and industry attempts to have the Court revisit its 2013 landmark decision on Article I, Section 27 of the Pennsylvania Constitution as part of oral argument before the Court.

 Act 13, also known as HB1950, was signed into law by Governor Corbett on February 14, 2012.

Act 13 amended the Pennsylvania Oil and Gas Act, preempting municipal zoning of oil and gas development. It also established an impact fee on natural gas.

The  Delaware Riverkeeper Network, Maya van Rossum in her capacity as the Delaware Riverkeeper, Dr. Mehernosh Khan, and seven municipalities filed suit on March 29, 2012 challenging the law on the grounds it violates the Pennsylvania and United States Constitutions and endangers public health, natural resources, communities and the environment. The municipalities participating are: Township of Robinson, Washington County; Township of Nockamixon, Bucks County; Township of South Fayette, Allegheny County; Peters Township, Washington County; Township of Cecil, Washington County; Mount Pleasant Township, Washington County; and the Borough of Yardley, Bucks County.

The named Appellants are the Commonwealth of Pennsylvania; Pennsylvania Public Utility Commission (“PUC”); Office of the Attorney General of Pennsylvania; and the Pennsylvania Department of Environmental Protection (“DEP”).

Oral argument was held before the PA supreme court on October 17, 2012.

The Pennsylvania Supreme Court issued its decision on December 19, 2013. In that decision the Pennsylvania Supreme Court ruled that Act 13 violates the Pennsylvania Constitution on the grounds that it violates the Environmental Rights Amendment. In doing so, the Court held that the right to pure water, clean air and a healthy environment are fundamental rights that must be given high-priority consideration and protection by every level of Pennsylvania’s government. The Court’s decision also struck down the shale gas industry’s effort to force every municipality in the state to allow gas drilling and related industrial operations in every zoning district. The Court’s decision upheld the ability of local governments to protect their local communities and natural resources through zoning. Chief Justice Castille authored the historic majority opinion. Justices Todd, McCaffrey and Baer joined in the result.

Justices Castille, Todd, and McCaffrey held that provisions of the law violate Article I, Section 27 of the Pennsylvania Constitution – the Environmental Rights Amendment. Justice Castille stated that “we agree with the citizens that, as an exercise of the police power, Sections 3215(b)(4) and (d), 3303, and 3304 are incompatible with the Commonwealth’s duty as trustee of Pennsylvania’s public natural resources.” In discussing Section 3304’s uniform zoning provisions, Justices Castille, Todd, and McCaffrey agreed that the provisions “sanctioned a direct and harmful degradation of the environmental quality of life in these communities and zoning districts.” They also concluded that the Act forced some citizens to bear “heavier environmental and habitability burdens than others,” in violation of Section 27’s mandate that public trust resources be managed for the benefit of all the people.

Justice Baer concurred in finding Act 13 unconstitutional, agreeing with the Commonwealth Court’s reasoning. Justice Baer stated that the provisions “force municipalities to enact zoning ordinances, which violate the substantive due process rights of their citizenries.” He further noted “Pennsylvania’s extreme diversity” in municipality size and topography and that zoning ordinances must “give consideration to the character of the municipality,” among other factors, which Act 13 did not.