On December 19, in Robinson Township v. Commonwealth of Pennsylvania, the Pennsylvania Supreme Court held unconstitutional major parts of Pennsylvania’s “Act 13”—a 2012 oil and gas law designed to facilitate the development of natural gas from Marcellus Shale. In so doing, the Court breathed new life into Article I, Section 27 of Pennsylvania’s constitution, which requires the state to “conserve and maintain” public resources “for the benefit of all the people.” The implications of this decision will be felt for years, perhaps decades.
Act 13 grew out of the rapid and intensive development of Marcellus Shale. It is intended to foster shale gas development by, among other things, limiting the role of local governments in reviewing and regulating shale gas operations. Act 13 constitutes a major revision to the state’s longstanding Oil and Gas Act, prompted by differences between conventional oil and gas drilling and new unconventional gas development from deep shale plays, known as “horizontal hydraulic fracturing,” or “hydrofracturing.”
Act 13 establishes a system for collecting and allocating impact fees from hydrofracturing, as well as requirements for permitting these operations by the state Department of Environmental Protection (DEP). And, of central importance to this litigation, Act 13 limits the ability of local governments to regulate these operations through traditional zoning and planning.
Three provisions of Act 13 are central to this litigation. First, section 3303 declares that state environmental laws “occupy the entire field” of oil and gas regulation, “to the exclusion of all local ordinances. Section 3303 also “preempts and supersedes the local regulation of oil and gas operations” regulated under the state’s various environmental laws.
Second, section 3304 requires “all local ordinances regulating oil and gas operations” to “allow for the reasonable development of oil and gas resources.” In so doing, it imposes uniform rules for hydrofracturing in the state, prohibits local governments from establishing more stringent rules, and establishes limited time periods for local review of proposals.
Last, section 3215(b) prohibits drilling or disturbing area within specific distances of streams, springs, wetlands, other water bodies. But Section 3215(b)(4) requires DEP to waive these distance restrictions if the permit applicant submits “additional measures, facilities or practices” that it will employ to protect these waters. That provision states: “The waiver, if granted, shall include additional terms and conditions required by [DEP] to protect the waters of this Commonwealth.”
Robinson Township and others filed a lawsuit against the state in Commonwealth Court, claiming that Act 13 violated various provisions of the Pennsylvania Constitution. In its July 2012 decision, Commonwealth Court dismissed most of the petitioners’ claims but held Section 3215(b)(4) and Section 3304 to be unconstitutional. President Judge Dan Pellegrini wrote for the four-judge majority; Judge Kevin Brobson and two other judges dissented.
The Commonwealth Court upheld Section 3303 against a claim that it violated Article I, Section 27 of the Constitution. Article I, Section 27 has been part of the Pennsylvania Constitution since 1971, when the state’s voters approved the amendment by a four-to-one margin. Article I, Section 27 provides:
“The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”
Notwithstanding its bold pronouncements (or perhaps because of them), Article I, Section 27 was mostly marginalized by Pennsylvania courts from the outset. In Payne v. Kassab, the Commonwealth Court substituted a three-part balancing test for the text of the amendment. That test has since been used by courts in the overwhelming majority of cases involving Article I, Section 27. Courts often have also taken the position that the legislature determines when Article I, Section 27 applies and does not apply.
Commonwealth Court made short work of the claim against Section 3303. Because Act 13 relieved municipalities “of their responsibilities to strike a balance between oil and gas development and environmental concerns,” there was no cause of action under Article I, Section 27.
The other two provisions were invalidated on other grounds. Concerning Section 3215(b)(4), the Pennsylvania constitution requires that “legislation must contain adequate standards that will guide and restrain the exercise of the delegated administrative functions.” The Commonwealth Court held Section 3215(b)(4) violated that requirement because it “gives no guidance to DEP that guide and constrain its discretion to decide to waive the distance requirements from water body and wetland setbacks.”
The Commonwealth Court’s decision on Section 3304 was based on “substantive due process,” which derives from the property rights provisions of the Pennsylvania constitution. For zoning requirements and other laws to satisfy the substantive due process requirement, Pennsylvania courts have previously ruled, they “must be directed toward the community as a whole, concerned with the public interest generally, and justified by a balancing of community costs and benefits.” Section 3304 “violates substantive due process,” the Commonwealth Court ruled, because it allows incompatible uses in zoning districts and does not protect the interests of neighboring property owners from harm, alters the character of the neighborhood, and makes irrational classifications.”
The Commonwealth Court also enjoined implementation of these provisions as well as any other provisions that carry out Section 3304. As the Supreme Court explained, the “effect of the injunction was to prohibit [DEP] from granting waivers of mandatory setbacks from certain types of waters…and to permit local government to enforce existing ordinances, and adopt new ordinances, that diverge from the Act 13 legal regime, without concern for the legal or financial consequences that would otherwise attend non-compliance with Act 13.”
The Supreme Court affirmed the Commonwealth Court’s decision concerning the two provisions it held unconstitutional, and also held Section 3303 to be unconstitutional. In a 162-page plurality opinion, Chief Justice Ronald Castille and two other justices, Debra McCloskey Todd and Seamus McCaffery, grounded their decision on Article I, Section 27 of the Pennsylvania Constitution. A fourth justice, Max Baer, concurred in the decision but based his concurring opinion on substantive due process. That provided a majority for this result. Justice Thomas Saylor and Justice J. Michael Eakin wrote separate dissenting opinions. Former Justice Orrie Melvin did not participate in the decision.
The state’s position on Article I, Section 27, Justice Castille wrote, is that the amendment “recognizes or confers no rights upon citizens and no right or inherent obligation upon municipalities; rather, the constitutional provision exists only to guide the General Assembly, which alone determines what is best for public natural resources, and the environment generally, in Pennsylvania.” The Commonwealth Court’s decision on Section 3303 of Act 13, which said in effect that the legislation trumps Article I, Section 27, is consistent with the state’s position.
The three-justice plurality plurality took a much different view. A substantial part of its opinion sets out “foundational principles” about Article I, Section 27 to guide future courts and decision makers. The plurality explained that the Court had not previously had an opportunity to address how Article I, Section 27 restrains the exercise of governmental regulatory power, and therefore “has had no opportunity to address the original understanding of the constitutional provision.” (Disclosure: my two-part 1999 article on Article I, Section 27 is cited extensively in the plurality opinion; for more information, see Part I and Part II.)
To begin with, the plurality wrote, constitutional interpretation must begin with the plain language of the Article I, Section 27 itself. The first sentence establishes two rights in the people, Castille wrote. The first is a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. The second is “a limitation on the state’s power to act contrary to this right.” The state as well as local governments are bound by these rights, the plurality said. In addition, these rights are equal in status and enforceability to any other rights included in the state constitution, including property rights.
The second and third sentences, the plurality wrote, involve a public trust. Public natural resources are owned in common by the people, including future generations. Because the state is the trustee of these resources, it has a fiduciary duty to “conserve and maintain” them. “The plain meaning of the terms conserve and maintain implicates a duty to prevent and remedy the degradation, diminution, or depletion of our public natural resources.” The state has two separate obligations as trustee. The first is “a duty to refrain from permitting or encouraging the degradation, diminution, or depletion of public natural resources.” The second is a duty “to act affirmatively to protect the environment, via legislative action.” These duties, the plurality said, foster “legitimate development tending to improve upon the lot of Pennsylvania’s citizenry, with the evident goal of promoting sustainable development.”
Pennsylvania’s history, Castille wrote, includes massive deforestation, the loss of game, and industrialization and coal mining. “It is not a historical accident that the Pennsylvania Constitution now places citizens’ environmental rights on par with their political rights,” the plurality said. Constitutional provisions, he pointed out, are to be interpreted based on “the mischief to be remedied and the object to be attained.”
In light of this analysis, the plurality concluded, the “non-textual” balancing test in Payne v. Kassab “is inappropriate to determine matters outside the narrowest category of cases, i.e., those cases in which a challenge is premised simply upon an alleged failure to comply with statutory standards enacted to advance Section 27 interests.” No Pennsylvania court has ever before articulated the “foundational principles” of Article I, Section 27 in this way, or at this level of detail.
The plurality then applied this framework to Sections 3303, 3304, and 3215(b)(4):
Section 3303, which preempted local regulation of oil and gas operations, violates Article I, Section 27 “because the General Assembly has no authority to remove a political subdivision’s implicitly necessary authority to carry into effect its constitutional duties.” The Commonwealth is the trustee under the amendment, which means that local governments are among the trustees with constitutional responsibilities.
Section 3304, which requires “all local ordinances” to “allow for the reasonable development of oil and gas resources” and imposes uniform rules for oil and gas regulation, violates Article I, Section 27 for two reasons. “First, a new regulatory regime permitting industrial uses as a matter of right in every type of pre-existing zoning district [including residential] is incapable of conserving or maintaining the constitutionally-protected aspects of the public environment and of a certain quality of life.” Second, under Act 13 “some properties and communities will carry much heavier environmental and habitability burdens than others.” This result is inconsistent with the obligation that the trustee act for the benefit of “all the people.”
Section 3215(b)(4), which requires DEP to waive setback distances to protect streams and other water bodies, violates Article I, Section 27 because the legislation “does not provide any ascertainable standards by which public natural resources are to be protected if an oil and gas operate seeks a waiver.”
In his concurring opinion, Justice Baer saw the primary argument of the petitioners to be based on substantive due process, and also viewed that approach as “better developed and a narrower avenue to resolve this appeal.” In “a state as large and diverse as Pennsylvania, meaningful protection of the acknowledged substantive due process right of an adjoining landowner to quiet enjoyment of his real property can only be carried out at the local level.” The challenged provisions, he said, “force municipalities to enact zoning ordinances” that “violate the substantive due process rights of their citizenries.”
Justice Saylor, in his dissenting opinion, took issue with the Article I, Section 27 and the substantive due process aspects of this case. In his view, Act 13 provides a detailed system for regulating unconventional gas development. The legislature “occupies the primary fiduciary role” under Article I, Section 27, and local governments have no “vested entitlement” to “dictate the manner in which the General Assembly administers the Commonwealth’s fiduciary obligation to the citizenry at large relative to the environment.” Justice Eakin’s dissent expressed concern that the decision empowers municipalities at the expense of state decision-making authority.
This decision obviously has major consequences for Marcellus Shale development in Pennsylvania as well as Article I, Section 27. Major parts of Act 13 will need to be rewritten by the General Assembly, and there may be another round of litigation after that. But the revitalization of Article I, Section 27 may be of even greater import, even though it did command the votes of a majority. The plurality treated Article I, Section 27 as actual constitutional law, and took the words of the amendment seriously. It is also impressive that the plurality framed the amendment’s relationship with other provisions of the constitution in terms of sustainable development.
Late on December 19, I spoke with Frank Kury, who as a state legislator drafted and championed Article I, Section 27. Still active in his 70s at the law firm Malady and Wooten, he was not involved in the case in any way. “In terms of what we intended,” he said, the plurality “really got it right.”