Thursday, December 19, 2013
Pennsylvania's Act 13, signed by Governor Thomas Corbett in 2012, is one of the most sweeping state actions relating to unconventional gas development and hydraulic fracturing. The Act required municipalities to allow gas development in all zones, even residential ones. It also updated various state environmental regulations of unconventional gas wells and allowed local governments to place an unconventional gas well fee--essentially a tax--on gas development, which goes into a state fund and is redistributed to local governments for expenditures on roads, affordable housing, environmental projects, and other infrastructure and services. The commonwealth court in Robinson Township v. Commonwealth of Pennsylvania found, among other things, that the portion of the Act requiring municipalities to allow unconventional gas development in all zones was unconstitutional--it violated substantive due process by essentially requiring unfair zoning results and forcing arbitrary zoning not in accordance with a comprehensive plan. Today, a Supreme Court of Pennsylvania majority also found this portion of the Act unconstitutional because it violated the Environmental Rights Amendment of the Pennsylvania Constitution, which provides that "[t]he people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment." (One justice believes that this portion of the Act is unconstitutional because of substantive due process, not the Environmental Rights Amendment.) The opinion also addresses provisions of the Act that allow the Pennsylvania Department of Environmental Protection to grant waivers from mandatory setbacks of well sites from various resources.