Prepared by the Community Environmental Legal Defense Fund
Click here for CELDF’s statement on the Pennsylvania Supreme Court’s decision.
Q. Does the Act 13 ruling ban fracking in Pennsylvania?
A. No. The Act 13 ruling allows municipal governments to return to their status prior to the adoption of Act 13 – that of being able to adopt local zoning ordinances which control where oil and gas drilling can occur on the surface within the community.
Q. Doesn’t zoning protect communities from fracking and oil/gas extraction?
A. No. Zoning protections only apply to the surface use of land within a municipality, not to what happens underground. Because frackers now use horizontal boring to access oil and gas resources, a municipality could zone limit surface operations to commercial or industrial areas within a community, but still having fracking take place under residential or conservation areas.
Q. On what grounds did the Court strike down most of Act 13?
A. The Court used a little applied constitutional amendment that was adopted by the voters of Pennsylvania in 1971. Known as the “environmental rights” amendment, the constitutional provision created rights for people to “clean air and pure water,” and required governments to act as the trustees of the natural resources of the state. The Court held that the state’s overriding of local zoning laws in Act 13 – in the interests of siting oil and gas facilities – prevented municipal governments from carrying out their duties as trustees under the constitutional provision.
Q. Did the decision have anything to do with the rights of the natural environment?
A. No. The Pennsylvania Constitution only recognizes rights for people, not ecosystems. It therefore protects the natural environment as a “resource” for human use.
Q. Could the decision enable communities to adopt and enforce local laws that recognize the natural environment as having rights of its own?
A. Perhaps. Over two dozen Pennsylvania communities have already adopted laws which recognize ecosystem rights – or rights of nature – and others are considering their adoption. If a community determines that it cannot carry out its duty as a trustee of “natural resources” without recognizing that nature itself possesses certain rights, then the ruling could open the door for state and federal recognition of those laws.
Q. Could the decision be used to strike down other laws, like ACRE, which override local zoning laws in order to site factory farms or other development?
A. Yes, potentially. There are several other laws that nullify local zoning ordinances, including ACRE (the “Agriculture, Communities, and Rural Environment” law, Act 38 of 2005). In the same way that Act 13 overrode local zoning ordinances in favor of oil and gas extraction, ACRE overrides local zoning ordinances in favor of the siting of corporate factory farms. In addition, several amendments to the State’s Municipalities Planning Code (MPC) – adopted in 2000 – override zoning ordinances in favor of mineral extraction, factory farms, and timber harvesting.
Q. Does the decision change the relationship of municipalities to State government?
A. No, unless the State forces the municipality to violate a constitutional right. Under current law, municipalities remain “creatures of the state” fully subject to the State’s control. The decision did not change the status of our communities from that subordinate role. Instead, it created a narrow area in which municipalities can challenge State attempts to preempt communities from making law on particular issues (such as fracking).