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Deputy Director of Delaware Riverkeeper Network,
Tracy Carluccio, speaking at statehouse rally |
While we are all
fighting the stranglehold
the oil and gas industry has on Gasland, more often
than not it’s difficult to claim many advances.
But at the end of 2013 a truly historic decision was declared when the
Pennsylvania Supreme Court threw out many elements of Act 13, a law crafted by the industry and
their cronies in Harrisburg and signed into law by Governor Corbett in February
2012. Act 13 preempted municipal zoning
and planning of oil and gas operations, established mandatory waivers of stream
setbacks contained in state law, and took away the rights of local governments
to protect the public trust.
But immediately a fight ensued.
Never mind that everything in Pennsylvania seemed to be going the gas
corporations’ way, that $23 Million has been spent by the gas industry to
influence Pennsylvania (PA) politicians, that Governor Tom Corbett’s election
campaign has received over $1.8 M, and
that the industry was running roughshod in a gas extraction frenzy that leaves
ruined communities, destroyed natural resources and polluted water supplies in
its wake. A legal challenge was
essential because and it was a violation of the Constitution and if allowed to
stand the law was a death knell for Pennsylvania and its people.
Seven municipalities, Delaware Riverkeeper Network, and Dr. Mehernosh
Khan, a physician practicing in southwestern PA, challenged Act 13 as
unconstitutional, relying heavily on Article 1, Section 27 of the PA Constitution,
the Environmental Rights Amendment. The
municipalities are: Township of
Robinson, Washington County; Township of Nockamixon, Bucks County; Township of
South Fayette, Allegheny County; Peters Township, Washington County; Township
of Cecil, Washington County; Mount Pleasant Township, Washington County; and
the Borough of Yardley, Bucks County.
On July 26, 2012 the Commonwealth Court declared the statewide zoning
provisions in Act 13 unconstitutional, null, void and unenforceable. The Court also struck down the provision of
the law that required DEP to grant waivers to the setback requirements in
Pennsylvania’s Oil and Gas Act. Delaware
Riverkeeper Network and Dr. Kahn lost standing.
The Commonwealth appealed. On
October 17, 2012 the Pennsylvania Supreme Court heard argument that
Pennsylvania’s Act 13 is unconstitutional, unjustly supersedes all local
ordinances related to oil and gas operations, extinguishes municipal zoning of
these operations, and exposes the public and the environment to pollution and
degradation from these activities. The
Court deliberated for more than a year.
On December 19,
2013 the PA Supreme Court ruled that provisions of Act 13 violate the Pennsylvania
Constitution. In doing so, the Court struck down the shale gas industry’s
effort to force every municipality in the state to allow gas drilling and
related industrial operations in every zoning district, rejected
one-size-fits-all zoning, the removal of public trust obligations of government
officials to local citizens, and the waivers for stream setbacks as
unconstitutional. Chief Justice Castille authored the historic majority
opinion. Justices Todd, McCaffrey and Baer agreed on the
unconstitutionality of the provisions, resulting in a 4 to 2 decision.
Justices
Castille, Todd, and McCaffrey held that the provisions violate Article I,
Section 27 of the Pennsylvania Constitution – the Environmental Rights
Amendment. Chief Justice Castille stated that “we agree with the citizens
that, as an exercise of the police power, Sections 3215(b)(4) and (d), 3303,
and 3304 are incompatible with the Commonwealth’s duty as trustee of
Pennsylvania’s public natural resources.” The three Justices recognized
that the Plaintiffs sought to “vindicate fundamental constitutional rights
that, they say, have been compromised by a legislative determination that
violates a public trust.”
In
reviewing Section 3303, the three Justices affirmatively noted that the public
trust obligations imposed by Section 27 run to all levels of government in the Commonwealth, including
municipalities. As a constitutional
obligation to local citizens, the Justices expressly recognized that no statute
can remove such an obligation from municipalities, and likewise cannot remove
the “implicitly necessary authority to carry into effect its constitutional
duties.” The Court understood that local
citizens made investments in their communities based on expectations created by
local ordinances, including local ordinances that sought to protect local
public trust resources. To the Court,
Section 3303 effectively “commands municipalities to ignore their obligations
under Article I, Section 27 and further directs municipalities to take
affirmative action to undo existing protections of the environment in their
localities” to the detriment of local citizens.
In discussing
Section 3304’s uniform zoning provisions, Justices Castille, Todd, and
McCaffrey agreed that the provisions “sanctioned a direct and harmful
degradation of the environmental quality of life in these communities and
zoning districts.” They also concluded that the Act forced some citizens
to bear “heavier environmental and habitability burdens than others” in
violation of Section 27’s mandate that public trust resources be managed for
the benefit of all the people. Further, the three Justices found similar
constitutional infirmities in Section 3304 as they found in Section 3303, in
that Section 3304 “removes local government’s necessary and reasonable
authority to carry out its trustee obligations” because it “prohibit[ed] the
enactment of ordinances tailored to local conditions.”
As for Section
3215(b)(4), which established mandatory waivers of stream setbacks, the three
Justices found this provision equally infirm.
Based on the Commonwealth’s argument as to Section 3215(b)(4), the
Justices struck the entirety of Section 3215(b). The Justices agreed with the Commonwealth
that the waivers provision in Section 3215(b)(4) could not be read independent
of the rest of Section 3215(b). In
reviewing the entirety of Section 3215(b), the Justices disapprovingly noted
that “Section 3215(b) appears to provide for nothing more than a set of
voluntary setbacks or, as an alternative, the opportunity for a permit
applicant to negotiate with the Department of Environmental Protection the
terms or conditions of its oil or natural gas well permit,” finding it
“remarkabl[e]” that the DEP had the burden of proving protective conditions to
be necessary. Further, because Section
3215(d) did not require the DEP to act on local concerns raised in comments to
the DEP, “Section 3215 fosters decisions regarding the environment and
habitability that are non-responsive to local concerns” to the detriment of
public trust beneficiaries – Pennsylvania citizens.
Justice Baer
concurred in finding Act 13 unconstitutional, agreeing with the Commonwealth
Court’s reasoning. Justice Baer stated that the provisions “force
municipalities to enact zoning ordinances, which violate the substantive due
process rights of their citizenries.” He further noted “Pennsylvania’s
extreme diversity” in municipality size and topography and that zoning
ordinances must “give consideration to the character of the municipality,”
among other factors, which Act 13 did not.
In recognizing what Act 13 meant for local municipalities, Justice Baer
stated, “As Challengers point out, Act 13 makes it easier for Chevron to
establish a drilling rig in the middle of a corn field than a church to build a
small ten-pew worship space in the same field.”
In a reversal of
the findings of the Commonwealth Court, the Pennsylvania Supreme Court found
that Dr. Khan satisfies standing requirements. The court noted that “existing
jurisprudence permits pre-enforcement review of statutory provisions in cases
in which petitioners must choose between equally unappealing options and where
the third option, here refusing to provide medical services to a patient, is
equally undesirable.” Opinion at 25. In other words, provisions of Act 13 put
Dr. Khan in the untenable and objectionable position of choosing between
violating Act 13’s confidentiality agreement and “violating his legal and
ethical obligations to treat a patient by accepted standards, or not taking a
case and refusing a patient medical care.” Id. Therefore, Dr. Khan’s interests
were indeed “substantial and direct…not remote,” and conferred standing.
Opinion at 26. The Court remanded Dr. Kahn’s case to the Commonwealth Court for
further proceedings.
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Delaware Riverkeeper Maya van Rossum speaks
at Shale Gas Outrage Rally in Philadelphia |
The Pennsylvania
Supreme Court also reversed Commonwealth Court’s finding that the Delaware
Riverkeeper Network lacked standing in this case. Specifically, the court found
that DRN’s members engendered “a substantial and direct interest in the outcome
of the litigation premised upon the serious risk of alteration in the physical
nature of their respective political subdivisions and the components of their
surrounding environment. This interest is not remote.” Opinion at 21-22.
Further, the court also found that Maya van Rossum, as the Executive Director
of the Delaware Riverkeeper Network, also has standing in her official capacity
to represent the membership’s interests.” Opinion at 22. The ruling therefore
sets important precedent for what immediate interest or harm environmental
organizations and their members need to demonstrate in order to properly
establish standing.
The Supreme
Court ruling is looking like a turning point, a watershed moment, for
Pennsylvania. The Petitioners knew they
would win if the law was still held sacred by the state’s highest Court. But how big the win is exceeds
expectations. The Environmental Rights
Amendment (ERA) now has new life and the application of that life has the
potential to renew the potency of what should be the bottom line in
environmental decisionmaking. That
foundation is the health of our communities and the environment that sustains
us and future generations. By
recognizing the power of ERA, the Court upholds the right of citizens and reaffirms
the responsibility of our elected officials to protect the public trust, to
fight for people and our natural world to be the priority, not greedy
corporations and their shills.
It is inspiring
to read that the Court stated, ““As the citizens illustrate, development of the
natural gas industry in the Commonwealth unquestionably has and will have a
lasting, and undeniably detrimental, impact on the quality of these core
aspects [life, health, and liberty: surface and ground water, ambient air,
etc.] of Pennsylvania’s environment, which are part of the public trust.”
Opinion at 117.
Additionally,
the Court stated, ““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 on the
public purse, perhaps rivaling the environmental effects of coal extraction.”
Opinion at 118.
These findings
apply beyond Pennsylvania and support the truth we all know about Gasland. That the highest Court in the most recently intensely
drilled state in the Nation has declared gas extraction operations to be
undeniably harmful to the environment and a threat to future generations and
potentially the public purse, puts wind under our sails everywhere we are
struggling to take back what the industry has stolen.
This blog was authored by Delaware Riverkeeper Maya van
Rossum, Attorneys Jordan Yeager and Lauren Williams and Tracy Carluccio, Deputy
Director of the Delaware Riverkeeper Network.
So let the industry and their political cronies twist in the
wind of hypocrisy – they know they passed legislation that would devastate Pennsylvania’s environment for generations to come in order to secure big profits and golden parachutes for their executives. 
