The Pennsylvania Supreme Court held key provisions of Act 13 unconstitutional under the Environmental Rights Amendment (ERA) of the Pennsylvania Constitution in a plurality opinion on December 19, 2013.  Act 13 was designed to streamline regulation of the oil and gas industry by setting statewide zoning standards and administrative review procedures, which posed significant financial ramifications for non-compliant municipalities.  The Court specifically held that the provisions mandating municipal zoning standards, such as permitting industrial oil and gas operations as a use of right in every zoning district throughout the state, are unconstitutional. These provisions were overturned because the legislature has abrogated constitutionally proscribed municipal duties to protect the rights guaranteed by the ERA.  The Court also held that provisions of the act imposing a waiver process for mandatory setback from waterways, administered by DEP, also violated the ERA.

The ERA guarantees the people, including future generations, the fundamental right to clean air, pure water, and the preservation of natural resources.  The ERA designates the Commonwealth (which includes municipalities) as the trustee of these resources, to conserve and maintain for the benefit of the people.  This plurality opinion is the first time the Court has addressed how the Commonwealth’s fiduciary duty as a trustee of the environment limits the power of the legislature, in particular its police power to regulate for the general welfare and economic prosperity.

The plurality decided the legislature, while promoting an industry that will admittedly benefit the state’s economy, failed its fiduciary duty because the Act 13 regime does not adequately fulfill its obligations under the ERA “to prevent degredation, diminution, and depletion of our public natural resources.”  This policy decision is based on the finding that “a new regulatory regime permitting industrial uses as a matter of right in every type of pre-existing zoning district is incapable of conserving or maintaining the constitutionally-protected aspects of the public environment and of a certain quality of life. In Pennsylvania, terrain and natural conditions frequently differ throughout a municipality, and from municipality to municipality. As a result, the impact on the quality, quantity, and well-being of our natural resources cannot reasonably be assessed on the basis of a statewide average. Protection of environmental values, in this respect, is a quintessential local issue that must be tailored to local conditions.”  The plurality instructed that to comply with the ERA, the legislature “must exercise its police powers to foster sustainable development in a manner that respects the reserved rights of the people to a clean, healthy, and esthetically-pleasing environment.”

The court also remanded the issues of whether Act 13 is specialized legislation in violation of Art. III Sec. 32 of the Pennsylvania Constitution, and whether Act 13 permits a “taking” by private corporations in violation of the eminent domain doctrine, for reconsideration by the Commonwealth Court.

The full opinion can be found here:

http://www.pacourts.us/assets/opinions/Supreme/out/J-127A-D-2012oajc.pdf?cb=1