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PA Supreme Court Strikes Key Part of Marcellus Law

gas drillingPortions of Act 13 were thrown out by the Pennsylvania Supreme Court Thursday.

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.”


11 Responses

  1. This decision reminds all of us how the U.S.A. (or at least the PA part of it) is different from countries like China that don’t have rule of law. This court has correctly read the PA constitution to stop an industry-centric administration (and that’s a restrained way of characterizing it) from giving Big GAS free license to poison our air and water, make a few people rich, and leave the rest of and future generations to live with the mess.

  2. Is it possible local determination will result in more drilling? Even shale gas migrates across political jurisdictions. Jobs and development might trump environmental concerns.

  3. Combined with a Community Bill of Rights, that 162 pages has a lot of potentially precedent-setting quotes, for future protections – or at least adequate compensation – for We The People:

    “The type of constitutional challenge presented today is as unprecedented in Pennsylvania as is the legislation that engendered it. But, the challenge is in response to history seeming to repeat itself: an industry, offering the very real prospect of jobs and other important economic benefits, seeks to exploit a Pennsylvania resource, tosupply an energy source much in demand. The political branches have responded with a comprehensive scheme that accommodates the recovery of the resource. By any responsible account, the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.” Page 118 of 162, Pennsylvania Supreme Court’s ruling yesterday against PA, its PUC, its Atty General, and its DEP Secretary. Ruling is in response to an appeal of a lower court ruling.

    Here’s the ruling in full:

  4. A few things, John – once a well is drilled, the rig can be moved elsewhere. Many are now in western North Dakota, where an oil boom is going on. Once the will is drilled, gas production continues, and production is peaking in Pennsylvania. The spud count (number of wells started) is down because the commodity price for natural gas collapsed (due to short-sighted greed), and the investment in expensive drilling can no longer be justified. And since this ruling was unexpected and just happened, what does it have to do with the current rig count? Finally, there are still plenty of places to drill without violating zoning rules and people’s right to quality of life.

  5. Well since most of the large gas companies have moved most of their rigs out of state this puts the nail in the coffin. The left will get whatthey really want: a larger wellfare state.
    Think I’m wrong? Check the rig count this year compered to two years ago

  6. HerpDerp indeed. I don’t get you conservatives, you bitch and moan about big government stomping on the little guy and when a court comes along that supports the state constitution and and overrules the big government in favor of local self-determination, you bitch and moan about the big corporations not being allowed to trash the environment wherever they want to. No pleasing you, eh?

  7. Hallalujah! It is almost impossible to believe that the PA Supreme Court actually ruled in favor of local zoning rights over the interests of a powerful gas industry!! Fracking is a dangerous process that has and will continue to ruin communities that allow it. The short term gain of jobs is not worth the contamination of the ground, soil and water supply. It is literally a deal with the devil. Thank you PA Supreme Court for finally putting your foot down and drawing the line in the sand and saying the community has a right to decide what is best.

  8. Well this is shitty. I don’t get you liberals, you bitch and moan about jobs not being available, then along comes an entire new industry along with its job creating abilities, both blue collar and white collar, and instead of seizing the opportunity, you bitch and moan about it damaging the environment. No pleasing you eh?

  9. First, the Supremes went well beyond the commonwealth court, so yes, Castille was the deciding vote.

    Second – a “bipartisan accomplishment”?? LOLOL… Tom Corporate thinks getting 1 vote from a Blue Dog Dem makes it bi-partisan? What a Maroon! The Gas Boomers used their Repub lackeys to tromp all over local government powers, and it has come a cropper. Suck on it, Chesapeake!

  10. Actually, Castille wasn’t the swing vote. If the ruling ended in a 3-3 tie, the ruling would have been what the lower courts determined, which was unconstitutional. For the original ruling to be overturned, it would have needed to be a 4-2 vote the other way.

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