On December 19, 2013, the Pennsylvania Supreme Court issued a highly anticipated decision in Robinson Township v. Pennsylvania striking down portions of Pennsylvania’s 2011 hydraulic fracturing law. The law, known in Pennsylvania as Act 13, made substantial changes to the state’s oil and gas laws and also imposed a new unconventional gas well fee allocated to state and local governments. Four of the six participating justices voted to strike down certain provisions of Act 13 but split 3 to 1 on the grounds for doing so. One justice, the now retired Justice Orie Melvin, did not participate. Writing for three justices, Chief Justice Ronald D. Castille issued a 162-page opinion finding that a number of Act 13 provisions violated Article I, Section 27, “Natural Resources and the Public Estate,” of the Pennsylvania state constitution. In a concurring opinion, Justice Baer also found provisions of Act 13 unconstitutional as violative of the substantive due process rights of Pennsylvania citizens by forcing local governments to roll back zoning ordinances that were relied upon by those citizens. Justice Baer’s opinion specifically notes that Act 13 failed to provide “any remedy when the inevitable damage to the enjoyment of private property occurs.”  The Pennsylvania Supreme Court remanded the case to the Commonwealth Court for further proceedings to determine the severability of these provisions.

Article I, Section 27, of Pennsylvania’s state constitution, referred to by the Court as the Environmental Rights Amendment, was approved by Pennsylvania voters in 1971 and provides that:

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.

Chief Justice Castille, writing for three members of the Court, found that certain provisions of Act 13 violated the requirement that “the Commonwealth shall conserve and maintain” Pennsylvania’s public natural resources.

Ultimately, the Court’s mandate enjoined application and enforcement of several provisions of Act 13 as invalid and several more provisions as not severable to the invalid provisions.

The Court enjoined the following provisions of Act 13 as invalid:

  • Section 3215(b)(4), which permitted the Pennsylvania Department of Environmental Protection to waive the Act 13 limits on well locations set out in Act 13 Section 3215(b)(1)–(3);
  • Section 3215(d), which authorized the Department of Environmental Protection to consider the comments of municipalities and storage operators in determining whether to issue a well permit but denied municipalities and storage operators the right to appeal or seek review of a decision by the department to issue a well permit;
  • Section 3303, which provided that statewide environmental acts occupy the entire field of regulation with respect to oil and gas operations and that Act 13 preempted and superseded local regulation of oil and gas operations; and
  • Section  3304, which required that all local ordinances regulating oil and gas operations allow for the reasonable development of oil and gas resources; allow well and pipeline assessment operations; not impose conditions, requirements, or limits on the construction of oil and gas operations more stringent than those imposed on other industrial uses; not impose conditions, requirements, or limits on the heights of structures, screening and fencing, lighting or noise relating to permanent oil and gas operations more stringent than those imposed on other industrial uses; have review periods for permitted uses within 30 days and for conditional uses within 120 days; authorize oil and gas operations as permitted uses in all zoning districts with only a limited set of exceptions; not impose limits or conditions on hours of subterranean operation, compressor station operation, drilling, assembly of drilling rigs, or disassembly of drilling rigs; and not increase setback distances set forth by the legislature and not impose more stringent setback distances than those imposed on other industrial uses.

Application and enforcement of the following Act 13 sections were also enjoined as not severable to the invalid provisions: Sections 3215(b)(1)–(3), which set out several well location limits, and “Sections 3215(c) and (e), and 3305 through 3309 . . . to the extent that these provisions implement or enforce those Sections of Act 13” that the Court held invalid. Justice Baer in concurrence noted that he would also have enjoined as not severable enforcement and application of Act 13 Section 3215(a), which set out well spacing requirements.

It remains to be seen whether additional portions of Act 13 will fall—the Court directed the Commonwealth Court on remand “to address whether any remaining provisions of Act 13, to the extent they are valid, are severable.”  Thus, it may be that not only additional portions of Act 13 but the entirety of the legislation could be struck down in future proceedings.

The Robinson Township decision may or may not harbor things to come in New York and Ohio. A case before the Ohio Supreme Court, Ohio v. Beck Energy Corp., and a pair of cases before the New York Court of Appeals, Anschutz Exploration Corp. v. Dryden and Cooperstown Holstein Corp. v. Town of Middlefield, implicate the same underlying conflict in Robinson Township over local regulation of hydraulic fracturing. Squire Sanders will continue to monitor these cases and provide updates as they develop.