PA Supreme Court Strikes Key Part of Marcellus Law
Act 13 is the legislation that allowed the state government to supersede local control and mandate local ordinance changes to accommodate natural gas extraction in the state.
Chief Justice Castille, a Republican, was the swing vote in the 4-2 decision. He delivered the majority opinion along with Justices Max Baer, Debra Todd and Seamus McCaffery joined. Justices Thomas Saylor and Michael Eakin wrote dissenting opinions.
“Act 13’s primary stated purpose is not to effectuate the constitutional obligation to protect and preserve Pennsylvania’s natural environment,” the majority decision read. “Rather, the purpose of the statute is to provide a maximally favorable environment for industry operators to exploit Pennsylvania’s oil and natural gas resources, including those in the Marcellus Shale Formation.”
The Supreme Court couched its argument in Article 1, Sec. 27, or the Environmental Rights Amendment of the state’s Constitution:
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.
Local governments will now have more control over the drilling ordinances in their municipalities. Under Act 13, municipalities were ordered to defer to state policy on zoning regulations.
“I am disappointed that the Supreme Court has invalidated some key provisions of Act 13. Act 13 was a bipartisan accomplishment between the Administration and members of the General Assembly, which raised the bar on environmental protection standards while respecting the rights of local governments,” Governor Corbett said. “The Act was crafted with strong input and support from Pennsylvania’s local government organizations. We must not allow today’s ruling to send a negative message to job creators and families who depend on the energy industry.”
Act 13 has been contentious since its passage in early 2012 as it squeaked through the General Assembly.
“We will continue to collaborate with communities across the Commonwealth, today’s decision is a disappointment and represents a missed opportunity to establish a standard set of rules governing the responsible development and operation of shale gas wells in Pennsylvania,” the president of the Marcellus Shale Coalition, Dave Spigelmyer said in a statement following the ruling. “ If we are to remain competitive and our focus is truly more job creation and economic prosperity, we must commit to working together toward common sense proposals that encourage – rather than discourage – investment into the Commonwealth.”
The ruling relied heavily on environmental rights, citing the history of Pennsylvania’s destruction of natural resources. This state is one of few that enumerates environmental rights to its citizens.
“That Pennsylvania deliberately chose a course different from virtually all of its sister states speaks to the Commonwealth’s experience of having the benefit of vast natural resources whose virtually unrestrained exploitation, while initially a boon to investors, industry, and citizens, led to destructive and lasting consequences not only for the environment but also for the citizens’ quality of life,” the decision read.
The Court also ordered Commonwealth Court to revisit several arguments previously thrown out, including the controversial “physician gag order”.
The impact fee instituted by Act 13 remains intact.
State Democrats are hoping that the ruling will open the door to new Marcellus legislation including, likely, a larger tax on drilling.
“The court’s decision to overturn portions of Act 13 – those provisions that involve zoning restrictions and the community’s right to protect their own water resources – provides Pennsylvania lawmakers with a second chance to craft a better, more responsible law,” Senator Jay Costa wrote in a statement following the decision. “Senate Democrats are hopeful that the governor will work with legislators on a balanced plan that includes a responsible approach to drilling restrictions and community protections.”