The United States and Pennsylvania constitutions grant Pennsylvania “police power” to enact zoning laws which promote the “health, safety and general welfare” of its citizens. Pennsylvania has, in turn, delegated much of its zoning authority under the police power to local governments pursuant to the Municipalities Planning Code, or “MPC.” Municipalities are creatures of the state, with no inherent powers of their own; they only exist because of the state and have only those powers given to them by the state.
Pennsylvania’s constitutional zoning power may not, of course, infringe upon any other rights protected by its Constitution. For example, Pennsylvania may not enact zoning laws which violate the Pennsylvania Constitution’s Environmental Rights Amendment—a constitutional provision unique to Pennsylvania that, unlike the police power, has no federal counterpart—which provides that Pennsylvania’s “natural resources are the common property of all the people” and that “the Commonwealth shall conserve and maintain them for the benefit of all the people.”
In February 2012, the Pennsylvania legislature enacted Act 13 which, most significantly, instituted a statewide zoning regime for oil and gas development that supplemented and superseded local zoning laws.
On December 19, 2013, the Pennsylvania Supreme Court held that Act 13 violated the Pennsylvania Constitution’s Environmental Rights Amendment. In a 162-page opinion that still manages to be conclusory, the Court determined that, while Act 13 was a valid exercise of the state’s police power, it violated the Pennsylvania Constitution’s Environmental Rights Amendment because “[b]y 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.” Robinson Tp., Washington County v. Com., No. 63 MAP 2012, p. 118 (Pa. 2013).
The court below had held Act 13 unconstitutional based on a different ground – namely, that it infringed upon some sort of local constitutional right to control zoning – which the Supreme Court rightfully ignored. The police power to zone belongs to the state, not the locality; while the state may delegate that power to the locality, it may also limit it or take it away entirely. Since the police power belongs to the state, it may choose to regulate some, none, or all of the zoning matters within the state. Thus, it was plainly within the legislature’s power to leave to localities the zoning of other matters but reserve unto itself in Act 13 the zoning of oil and gas.
Likely recognizing this infirmity, the Supreme Court decided the case on other grounds – namely, the Environmental Rights Amendment, a provision rarely applied or interpreted by the Pennsylvania courts and, more importantly, one which is peculiar to the Pennsylvania Constitution, thereby precluding any U.S. Supreme Court review of the Court’s decision or Act 13 itself.
While the Court’s decision may be immune from further review or appellate challenge, it is problematic in its reasoning. The Court concludes, without any evidence, that oil and gas development in the state is injurious to its natural resources and, therefore, violative of the Environmental Rights Amendment. However, the Court points to no evidence supporting that conclusion; instead it summarily states that, “by all reasonable accounts,” oil and gas operations are bad for the environment, without detailing what those “reasonable accounts” are or, more importantly, whether those accounts, if true, outweigh the benefits posed by capitalizing on those same natural resources.
The dissenting opinion of Justice Saylor gets at many of these points, and is persuasive in its reasoning (primarily that zoning and regulating oil and gas operations are better left to the legislature, not the judiciary). There is likely no viable appeal from the Pennsylvania Supreme Court’s decision, and, thus, it falls to the legislature to try again to craft legislation accomplishing the same goals. Perhaps this time the legislature will seek to amend the MPC directly to include specific oil and gas provisions. Until that time, however, producers and operators will remain subject to the idiosyncratic will of each particular locality’s zoning laws and officials.
For more information, please contact Daniel Michelmore.