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Fracking and the Pennsylvania Supreme Court

A splintered Pennsylvania Supreme Court has spoken on the issue of Fracking in William Penn’s Commonwealth, Robinson Township v. Commonwealth of Pennsylvania. Mr. Justice Castille, a Republican, announced the judgment of the Court in which he was joined by three other justices with respect to most of the Chief’s views. He also delivered an opinion on two aspects of the fracking law in which he commanded a minority.Act 13 amended Pennsylvania Oil and Gas Act. The Court characterized the law as effectuating “sweeping” legislation affecting Pennsylvania’s environment and in particular the exploitation and recovery of natural gas in the geological formation known as the Marcellus Shale.

Section 27 of the Declaration of Rights in the Pennsylvania Constitution states that the people of the Commonwealth shall have the 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.” The Commonwealth was appointed as trustee of these resources to “conserve and maintain” them for the benefit of all the people.

Mr. Justice Baer concurred in the decision of the Court but did not rely upon the Environmental Rights Amendment but rather the substantive due process clause of the Constitution. Any way you slice it, the majority of the Justices of the Pennsylvania Supreme Court found Act 13 unconstitutional in a variety of ways.

The opinion represents a marvelous explanation of the nature of the Marcellus Shale formation, how drilling is done, and the scope of the amendments to the Oil and Gas Act.

The Court easily discarded a number of procedural challenges raised to the parties who brought this action. The Court reiterated that an association has standing as representative of its members to bring a cause of action even in the absence of injury to itself, if the association alleges that at least one of its members is suffering immediate or threatened injury as a result of the action challenged.

The Commonwealth argued that the Court could not examine the law because that would constitute a “political question.” The judicial power of the Commonwealth is not vested in the General Assembly but in the unified judicial system including the Commonwealth Court and ultimately the Supreme Court of Pennsylvania. It is the province of the judiciary to determine whether the Constitution of the Commonwealth require or prohibit the performance of legislative acts. A lecture on separation of powers relying heavily on James Madison is found in footnote 16. The clear definitiveness of the Court cannot be ignored. “Litigation polemics aside, Act 13 is a legislative act subject to the strictures of the Pennsylvania Constitution and the U.S. Constitution.” At slip opinion p. 35.

Justice Castille, casting off any pretest of shyness, noted that Act 13 introduced heavy-duty industrial uses, natural gas development and processing, including permission to store waste water, into all existing zoning districts as a right including residential, agricultural, and commercial. “…[a]t its core, this dispute centers upon an asserted vindication of citizens’ rights to quality of life on their properties and in their hometowns, insofar as Act 13 threatens degradation of air and water, and of natural, scenic, and esthetic values of the environment, with attendant effects on health, safety and the owners’ continued enjoyment of their private property.” At slip opinion p. 57. This, wrote the Chief Justice, implicates the Environmental Rights Amendment, Article IA, Section 27.

Pennsylvania’s Environmental Rights Amendment has no counterpart on the federal level. Pennsylvania has been a leader in environmental protection and preservation of Commonwealth lands for future generations. The Court utilized the dispute over Act 13 to undertake a necessary explication of the Environmental Rights Amendment, including foundational matters. In other words, what does the Environmental Rights Amendment really mean and how far does it go? Justice Castille wrote his legacy with an answer to the question which he so aptly raised. “The environmental public trust was created by the people of Pennsylvania, as the common owners of the Commonwealth’s public natural resources; this concept is consistent with the ratification process of the constitutional amendment delineating the terms of the trust.” At slip opinion p. 83. The Commonwealth is a fiduciary which has a duty to act toward the corpus of the trust, the public natural resources, with “prudence, loyalty, and impartiality.” At slip opinion p. 84.

The Commonwealth has an obligation to refrain from performing its trustee duties respecting the environment unreasonably, including legislative enactments or executive action. The Commonwealth has a duty to refrain from permitting or encouraging the degradation, diminution, or depletion of public natural resources, whether such degradation, diminution or depletion would occur through direct state action or indirectly. Indirect depletion, diminution or degradation would be caused by the state’s failure to restrain the actions of private parties. Id.

The Court explained why the Pennsylvania Constitution places citizens’ environmental rights on par with political rights. Three and a half centuries ago forests blanketed ninety percent of the Commonwealth’s surface of over twenty million acres. Two centuries later, the state experienced a lumber boom that by 1920 had left much of Pennsylvania naked to vegetation by trees. Loggers scarred the land and left it desolate. This devastation was the subject of rage which was manifested in the Pennsylvania Constitution. “Never again,” said the people of Pennsylvania.

That Pennsylvania deliberately chose a course different from virtually all of its sister states speaks to the Commonwealth’s experience of having the benefit of vast natural resources whose virtually unrestrained exploitation, while initially a boon to investors, industry, and citizens, led to destructive and lasting consequences not only for the environment but also for the citizens’ quality of life. Later generations paid and continue to pay a tribute to early uncontrolled and unsustainable development financially, in health and quality of life consequences, and with the relegation to history books of valuable natural and esthetic aspects of our environmental inheritance. At slip opinion p. 94.

The sweeping scope of this opinion is the statement that the likes of Teddy Roosevelt would have admired. Justice Castille has enshrined himself forever in the Hall of Fame occupied by our nation’s most important environmental protectors.

The Court proceeded to examine the law chapter by chapter and section. Local government, noted the Court, would be required under Act 13 to authorize oil and gas operations, impoundment areas, and location assessment operations (including seismic testing and the use of explosives) as permitted uses in all zoning districts throughout a locality. Local government would be required to authorize natural gas compressor stations as permitted uses in agricultural and industrial districts, and as conditional uses in all other zoning districts. Local governments were commanded to authorize natural gas processing plants as permitted uses in industrial districts and as conditional uses in agricultural districts. The authority of local governments in connection with virtually any component of Marcellus Shale drilling was denuded by Act 13 in an unconscionable rush to exploit the subterranean environment. As the Court noted, “local government zoning role is reduced to pro forma accommodation….” At slip opinion p. 111.

The Chief Justice wrote that Pennsylvania has a “notable history of what appears retrospectively to have been a shortsighted exploitation of its bounteous environment, affecting its minerals, its water, its air, its flora and fauna, and its people.” At slip opinion 117. This Court, led by its chief, is not about to let that happen again, not on their watch and not on their sacred land. The Court verbally explored the scars on the land as a result of unregulated and uncaring destruction of one of the greatest land grants in history.

The specific review of the sections of the Act violating the Pennsylvania Constitution is almost secondary to the articulated purpose of the Court, which was to make clear to the Governor, the General Assembly and industry that they would not be permitted to trample on Pennsylvania’s heritage in the name of development. The Court is certainly not anti-business or against properly restrained growth. What the Court will not permit, however, is a blatant attempt to render the Pennsylvania Constitution impotent so that wealthy industry can reap obscene profits at the expense of the citizens who own our land.

In a manner, this opinion is a conservative piece of art. Local governments, it was reinforced, has the power to frame local ordinances they see fit within the limitations of their delegated powers. A political branch of government hungry for corporate oil and gas donations cannot override the legitimate place of grass roots government.

The entire Act was not, of course, found invalid. What was declared improper is a statutory scheme hatched by the Governor and devoured by many legislators which would have permitted and even encouraged gas development with no rules and no restrictions regardless of the harm which that exploitation might cause.

Courts do not have armies, navies or air forces to enforce their rulings. Courts speak effectively only when they have moral authority behind them based upon an honest articulation of the law. Reading the opinion in Robinson Township v. Commonwealth of Pennsylvania, should make any citizen proud of the viability of our Pennsylvania Supreme Court. May our Justices continue to serve in good health, peace and contentment throughout 2014 and beyond.

Clifford A. Rieders, Esquire
Rieders, Travis, Humphrey,
Waters & Dohrmann
161 West Third Street
Williamsport , PA 17701
(570) 323-8711 (telephone)
(570) 323-4192 (facsimile)

Cliff Rieders, who practices law in Williamsport, is Past President of the Pennsylvania Trial Lawyers Association and a member of the Pennsylvania Patient Safety Authority. None of the opinions expressed necessarily represent the views of these organizations.

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