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Act 13 ruling could change drilling case law
January 27, 2014 - Ben Klein
Associated Press, Times Leader
With the state Supreme Court's decision last month to strike down Act 13 provisions that set statewide zoning rules for natural gas development, experts are questioning whether the ruling will affect future litigation.
The justices found that Act 13 zoning provisions that allow natural gas drillers to produce in residential and agricultural areas collided with the state constitution's Environmental Rights Amendment, which, until now, the high court has never used to make decisions.
The amendment maintains Pennsylvanians have the right to clean air, pure water and the preservation of the environment's historic and aesthetic values. In a 2010 review of the document, Widener University's Environmental Law Department noted it is used mostly as a guide for legislators drafting new policy.
Three justices, Chief Justice Ronald D. Castille along with Debra McCloskey Todd and Seamus P. McCaffery, voted in favor of striking down the provisions, citing the amendment.
Justice Max Baer voted in favor of striking down the provisions, though he did not base his decision on the amendment. Rather, in his opinion Baer said that as an extension of the general assembly, municipal governments should set their own zoning regulations as they can best determine the needs of their communities.
Justices Thomas G. Saylor and J. Michael Eakin opposed the majority in two congruent opinions that passing the zoning regulations was within the general assembly's purview.
Opinion's strength questioned
During a telephone conference, Penn State University law professor Ross Pifer last week said the decision would have more clout if more justices were in accord.
“The language that was used (in Castille's published opinion) was very, very strong language,” Pifer said. “If that language had been signed off on by four justices, if it had a majority opinion, I think it would have had a huge impact moving forward.”
The ruling restores municipal zoning standards relating to natural-gas drilling in place before Act 13 was passed in 2012.
Experts say there has been no significant fallout after the Dec. 19 decision, although Adam Garber, field director for Philadelphia-based environmental advocacy group PennEnvironment, said he imagines municipal leaders are dusting off their old zoning ordinances.
“There's the immediate thing: I think townships and citizens are going to revisit the local ordinances to best protect their community,” he said.
Further, fearing their efforts could now be struck down by the amendment, legislators are likely to consider it when drafting new laws, Garber said.
“In the long term, I think it has the potential to shift environmental policy in the state,” Garber said.
Other provisions out
Act 13 also gave the state Department of Environmental Protection power to grant waivers for drillers to breach established setback zones. These zones contained waterways and buildings.
The justices knocked down those provisions saying the act offered no standards for DEP to administer the waivers.
The provision was inextricably linked to other provisions that defined how far well pads must be from buildings and waterways. In short, those setback zones have been dissolved.
Gov. Tom Corbett has asked drillers to honor the old setback rules and member drillers of the Marcellus Shale Coalition have agreed to abide by his request, said coalition spokesman Steve Forde.
The suit has a third aspect in which Dr. Mehernosh Khan, a Pittsburgh physician, sued to repeal Act 13's medical disclosure provisions that allowed companies to keep chemicals used in fracking production fluids secret as a matter of corporate propriety.
The state Commonwealth Court shot down his argument saying the doctor had no grounds for his suit; however, the state Supreme Court decided Act 13 possibly could force him to break the law and revived his case.
The case has been remanded to the state Commonwealth Court on several issues, two of which threaten to dismantle the act in its entirety, Pifer said.
• The general assembly must treat all similar industries equally. If the courts decide all of Act 13 panders to the natural-gas industry, it could decertify the entire document.
• The courts also could decide the zoning and setback provisions in question are essential to the rest of the law, and therefore the whole law cannot stand without them.
When the case was first before the Commonwealth Court, judges sided with municipalities on the zoning issues but determined Act 13 was not a special law. The Supreme Court ruled their decision was founded on incomplete information, Pifer said.
It remains to be seen how the lower court will rule. Pifer said the matter will likely reappear before the state Supreme Court after an appeal from whoever loses before the Commonwealth Court.
Case law could be shaped forever because of this decision, Pifer said, though he explained the justices' varying opinions could tarnish its integrity.
“When you start to look at the next case, that's where the opinion and the actual reasonings and the words can be important,” Pifer said. “And there's an issue here because it was a plurality opinion. It does impact how this decision will be viewed in the future.”
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