Pa. Supreme Court Strikes Down Fracking Zoning Law: Governor Tom Corbett Contests the Ruling

On December 19, 2013, the Pennsylvania Supreme Court (the "Court") largely affirmed a 2012 ruling by the state's Commonwealth Court, which struck down several provisions of a law known as Act 13 (the "Act"). The Act created guidelines for natural gas drilling in the state, and included a provision restricting the power of local governments to pass zoning ordinances prohibiting natural gas fracking. However, the state Supreme Court sided with the lower court ruling and found several aspects of the law unconstitutional.

The Court was divided in its constitutional grounds for invalidating the Act. In the majority opinion, three justices concluded the Act was in violation of Section 27 of the state constitution, the Environmental Rights Amendment ("Section 27"). Those justices found the Act did not adequately balance the promotion of hydrocarbon production against the duty to protect the environment as required by Section 27. Essentially, the Court imposed a balancing test requiring a government action to reasonably account for the environmental impact on an affected locale for it to be deemed constitutional under Section 27. The decision ultimately remanded parts of the case to the lower court to determine whether the remainder of the law was severable from the invalidated provisions.

One concurring justice, in accordance with the reasoning of the lower court, found the Act's restriction on local governments' abilities to pass zoning ordinances barring natural gas drilling to be in violation of substantive due process rights. Specifically, he found the zoning law to be in conflict with a landowner's right to quiet enjoyment of his property"”a right he believed was best protected at the local level.

Governor Tom Corbett and his administration strongly disagreed with the Court's ruling and found the imposition of a balancing test with respect to environmental concerns to be without precedent. Additionally, the state argued the Court did not have a sufficient factual record to make its determinations, and exceeded its jurisdictional authority by improperly assuming a fact-finding role with respect to several of its environmental conclusions. Moreover, the administration contended the ruling actually jeopardized environmental safety by invalidating certain provisions of the Act, such as extended well setback requirements. The Court ultimately struck down the setback provision out of a concern that the statute did not provide clear standards for how waivers to the requirement might be obtained. In reaching this conclusion, the Court rejected the state's argument that existing environmental laws, such as the Clean Water Act, could be relied upon to provide the waiver standards.

In response to the ruling, the state Department of Environmental Protection and the Public Utility Commission filed an Application for Reconsideration of the decision on January 2, 2014. The application requested a remand to the lower court for evidentiary hearings on the balancing test, as well as a remand for further development of facts and application of those facts to the newly-created balancing test.

 *Update, January 22, 2014 - Two state congressmen sought, and were denied, the right intervene in the litigation when it was on appeal before the Commonwealth Court in 2012.  They appealed the denial of their petition, but on January 21, 2014 the Supreme Court refused to overturn their intervention bid.  Senate President Pro Tempore Joe Scarnati and House Speaker Sam Smith sought to intervene in hopes of presenting additional arguments for the constitutionality of Act 13, but were deemed to lack standing in a per curium order issued by the Court.  To be entitled to party status, the petitioner's needed to demonstrate an interest in defending the "authority of their office" or the "potency of their right to vote."  However, the justices found the congressmen's stated interest in offering evidence of the Pennsylvania General Assembly's intent in enacting Act 13 to be an insufficient reason for granting party status.