EARTHWORKS

Halting The Parade of Horribles: Pennsylvania’s Supreme Court Strikes Down Act 13

Aaron Mintzes's avatar
By Aaron Mintzes

December 20, 2013

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Last Thursday, the Pennsylvania Supreme Court handed down a landmark ruling vindicating the rights of citizens and communities to choose where drilling can or cannot occur in our neighborhoods.

The case, Robinson Township et al vs. the Commonwealth of Pennsylvania et al. overturns part of Act 13 - the part prohibiting local zoning restrictions, which are essential to keeping industrial gas operations out of neighborhoods or other areas and protecting residents from pollution, noise, light, traffic, and other impacts.

Those prohibitions are why Earthworks and partner organizations worked so hard to defeat Act 13 from the get-go.

No One is Above the Constitution- not even the oil and gas industry

The most significant piece of yesterday’s ruling is that Act 13 violates the state constitution. This monumental holding speaks for itself. Passed with unanimity in 1970, the Environmental Rights Amendment (ERA) to the Commonwealth’s Constitution reads:

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. PA. CONST. art. 1 sec. 27

The Court quotes from the debates over the ERA:

We seared and scarred our once green and pleasant land with mining operations. We polluted our rivers and our streams with acid mine drainage, with industrial waste, with sewage…We uglified our land and called it progress. (page 92 of the Majority Opinion)

Then the Court concludes:

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 the public purse, perhaps rivaling the environmental effects of coal extraction (page 118 of the Majority Opinion)

Standing Not Even Close

But let’s not get ahead of ourselves. The Supreme Court's decision stems from a lawsuit brought by Delaware Riverkeeper Network and seven municipalities across the state (the Townships of Robinson, Nockamixon, South Fayette, Peters, Cecil, and Mount Pleasant and the Borough of Yardley). So the Court first had to decide who are the right litigants, or who has "standing and can sue. One friend seeking standing, Maya Van Rossum, head of the Delaware Riverkeeper Network, submitted affidavits on the record showing that some of her organization’s members already host active natural gas operations.

The opposition, for their part, characterized Maya’s stake in this case as speculative and remote. They even objected to municipalities suing the Commonwealth for taking away their zoning powers claiming their injury as a “wholly speculative parade of horribles” (page 16 of the Majority Opinion). The Supreme Court sided with Maya; and on whether towns can sue, the Court said, “We do not view this question to be close; we agree with the citizens…” (page 17 of the Majority Opinion) Not even close.

The Pig in the Parlor Instead of the Barnyard

Local control over land use decisions balances what individual parcels pay in terms of reasonable regulation, with the benefits in protections for their quiet use and enjoyment. The law long ago recognized zoning’s purpose as avoiding “the pig in parlor instead of the barnyard”. In 1974, the US Supreme Court held in Village of Belle Terre v. Boraas, that land use restrictions help secure "zones where ... the blessings of quiet seclusion and clean air make the area a sanctuary for people."

Again, this decision speaks for itself:

Reviewing (Section 3304), few could seriously dispute how remarkable a revolution is worked by this legislation upon the existing zoning regimen in Pennsylvania, including residential zones. (page 110 of the Majority Opinion)

The Court then documented the parade of horribles Section 3304 forces communities to absorb: seismic testing, use of explosives, compressor stations, processing plants, with no resort to increased setbacks, lighting, noise, fencing, or screening protections.

The New Trend

The problem for the oil and gas industry is that citizens and their governments closest to them- municipalities- are experiencing the parade of horribles. The result is that voters in Colorado, Dallas, and in an increasing number of communities across the country, citizens (and newer Americans) are bonding together to demand moratoria, bans, increased setbacks, and better waste management.

So, it used to be that the oil and gas lobby would come to Washington, D.C. arguing that the closer a regulator is to the well head, the better the regulation. Now, they would rather take their chances with weak federal regulations like the proposed BLM rule than face local opposition from zoning ordinances or new state air rules. This shift illustrates the kind of forum shopping the industry must do to find the fastest and easiest places to drill. Now that the decision over Act 13's zoning provisions has been made, and the Pennsylvania Supreme Court has affirmed the rights of municipalities to adopt protective ordinances, the oil and gas industry will no longer be able to have their way--and only their way--anywhere they want at the expense of the Commonwealth's communities.


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Tagged with: zoning, supreme court, pennsylvania, gag rule, federalism, act 13

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