On December 19, 2013, the state Supreme Court found much of Act 13 unconstitutional. CELDF issued a press statement and FAQs, both below, on the decision.
In 2012, the Pennsylvania Legislature adopted Act 13 to accelerate fracking of shale gas from the Marcellus Shale deposit underlying much of Pennsylvania. Among other provisions, Act 13 eliminated the authority of municipalities to decide where drill wells could be sited in their communities.
Act 13 is but one of many efforts by the State to preempt people and their communities from making critical decisions for themselves – including decisions on fracking.
Statement on the Pennsylvania Supreme Court’s Ruling that Parts of Act 13 are Unconstitutional
“This ruling, while welcome, does not stop fracking of Pennsylvania’s communities, nor does it recognize the right of the people of Pennsylvania to govern their own communities without state or corporate interference.” – Thomas Linzey, Esq., Executive Director
Today, the Pennsylvania Supreme Court issued an opinion in the closely-watched case of Robinson Township v. Commonwealth of Pennsylvania, No. 63 MAP 2012.
The case was a challenge filed by several Pennsylvania municipalities against the state legislature’s adoption of Act 13. Act 13 sought to eliminate zoning authority from municipalities over oil and gas extraction.
Act 13 was passed in 2012 to remove any local barriers to the expansion of drilling and fracking across the state. Provisions of Act 13 made certain oil and gas extraction activities a “use by right” in any part of any municipality, thus eliminating the ability of municipalities to use zoning and planning to control oil and gas drilling (and other activities) within their communities.
In 2012, Pennsylvania’s Commonwealth Court (Pennsylvania’s trial court for actions brought against the State of Pennsylvania), ruled in favor of the municipal Plaintiffs. That Court struck down certain portions of Act 13, ruling that they were a constitutional violation of the property rights of landowners who would be affected by the Act’s elimination of municipal zoning authority.
The decision was then appealed by several parties to the Pennsylvania Supreme Court.
In today’s decision, the Pennsylvania Supreme Court also ruled in favor of the Plaintiffs. However, in a departure from the lower court, the state Supreme Court rooted its decision not in the property rights of landowners, but on Pennsylvania’s Environmental Rights Amendment.
The Amendment, adopted in 1971 by the voters of the State as part of the State Constitution’s Declaration of Rights, declares the right of citizens to “clean air and pure water” and to the “preservation of natural, scenic, historic, and esthetic values of the environment.” The Amendment also declares that the State and its municipalities must act as trustees to protect the rights of Pennsylvania citizens under the Amendment.
The Court ruled that Act 13’s elimination of zoning and land use planning authority – the primary method through which municipalities act as trustees – was unconstitutional. For, the Court found, the State cannot interfere with the constitutional duty of municipal governments to carry out the duties imposed by the Environmental Rights Amendment.
In essence, the Pennsylvania Supreme Court delivered a ruling today which limits the power of the State to interfere with the duty of municipalities to act as a trustee of natural resources.
The Court thus overturned several sections of Act 13, including the sections creating the power of the State to nullify municipal zoning provisions which ran afoul of the Act’s requirement that oil and gas drilling could occur in any area of a municipality, regardless of how that area was zoned.
The Court’s decision was a drastic departure from that of prior courts with respect to the Environmental Rights Amendment. Ever since the Amendment’s overwhelming adoption by the people of the Commonwealth, courts have generally disregarded it, holding that its sole purpose was to provide additional authority to state agencies to protect the natural environment.
In response to the decision, Thomas Linzey, the Executive Director of the Community Environmental Legal Defense Fund (CELDF) based in Mercersburg, PA, stated, “Today was a significant victory for municipalities seeking to regulate the placement of oil and gas wells and other structures on the surface of land.”
“Further, today’s decision may not only affect Act 13 or oil and gas drilling. For years, the state legislature has sought to eliminate local authority on extraction and other activities, including forestry and coal, which the Court referenced in its decision.”
For many years, the Community Environmental Legal Defense Fund has represented municipal clients adopting local ordinances that ban corporate projects harmful to communities. As part of that work, the Legal Defense Fund has fought to overturn another Pennsylvania law – known as ACRE (“Agriculture, Communities, and Rural Environment”) – which forced corporate factory farms into communities regardless of local zoning and land use planning laws which sought to limit industrial agriculture.
Linzey stated, “The Court’s decision calls into question the constitutionality of any state laws which nullify the authority of municipal zoning ordinances and land use plans. Today’s ruling gives new life to people’s environmental rights, and serves more importantly, in some ways, to shield our communities from a state legislature that has been privatized by certain industries.”
Linzey further explained, “This ruling, while welcome, does not stop fracking of Pennsylvania’s communities, nor does it recognize the right of the people of Pennsylvania to govern their own communities without state or corporate interference.”
“Today’s decision does, however, for the first time open the door for future rulings that would add that law. However, there remain tremendous legal barriers in place which subordinate the authority of people, communities, and nature to protect themselves from fracking and the wide range of activities that the state legislature has forced into our municipalities,” explained Linzey.
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).