PA SUPREME COURT COMMENTARY

The balance of this report is a compilation of reports from Pennsylvania sources as reported via the Frac Sand Sentinel (courtesy of Pat Popple).

< ============ FIRST REPORT ============= >Thursday 12/19/13-

BREAKING NEWS: PA Supreme Court rules in favor of local communities, constitutional protections in landmark Act 13 decision

Rep. Jesse White hails landmark Supreme Court Act 13 ruling upholding local communities and Constitutional environmental rights as ‘historic victory’

CECIL, Dec. 19 – State Rep. Jesse White, D-Washington/Allegheny/Beaver, released the following statement on today’s landmark ruling by the Pennsylvania Supreme Court regarding Act 13, which upholds and expands the Commonwealth Court’s July 2012 decision to strike down sections of the Pennsylvania gas drilling law taking away local zoning rights as unconstitutional.

In making its ruling, the Supreme Court relied upon Article 1, Sec. 27 of the PA Constitution which guarantees the right of clean air and water for Pennsylvanians, as well as the violation of substantive due process rights stemming from various provisions of Act 13, including the provision superseding local zoning ordinances. The Court also ordered Commonwealth Court to revisit several arguments previously thrown out, including the controversial “physician gag order”. The local impact fee portion of Act 13 remains unaffected by today’s decision.

White’s statement is as follows:

“Today’s ruling by the Pennsylvania Supreme Court is a historic victory at a critical moment for the people of Pennsylvania. By affirming every Pennsylvanian’s constitutional right to clean air and clean water and upholding the right of local communities to govern themselves when it comes to certain aspects of natural gas development, a clear message has been sent to Governor Corbett and his friends in the energy industry: our fundamental Constitutional principles cannot be auctioned off to wealthy special interests in exchange for campaign dollars. On this day, David has defeated Goliath.

“Despite the $1.3 million spent by the energy industry to write and pass its own law, and a Governor and legislature all too eager to play along, each court that heard this case recognized the massive problems created by the zoning loopholes in Act 13. Eliminating local ordinances and replacing them with a ridiculously low standard of protections, like allowing drilling in residential neighborhoods and next to schools and churches, is not constitutional, not an environmental best practice, nor is it the proper way to do business in Pennsylvania. The Supreme Court has made clear that anything less than true best practices when it comes to natural gas drilling moving forward will be unacceptable.

“I applaud the prudence and courage of the local municipalities that challenged this ill-conceived law, most of which reside in the 46th Legislative District. Furthermore, I am proud to have given my unequivocal, unabashed and unwavering support to the effort to have it repealed. Thankfully, the courts agreed that the legislature has no business passing laws to exclusively benefit one industry over another, and ultimately, that what might be good for Wysox or Athens Township in northeastern Pennsylvania may not be good for Cecil or South Fayette Township here in the southwest. As we’ve said all along, this is why local zoning is so important.

“The challenge to this law was not a partisan issue, and today’s outcome has nothing to do with trying to stifle responsible natural gas development. Instead, allowing the voices of local communities to participate in the process should lead to a more open and honest debate as operators realize they need to respect local governments in order to earn a social license to operate in our communities. Democrats and Republicans at the local level joined together to challenge Act 13 in an attempt to protect fundamental property rights, and in succeeding illustrated that policy is more important than politics when it comes to such a critically important matter.

“Although this is a monumental victory, now is not the time to spike the football or do a touchdown dance, because the real work is just beginning. It is time for Gov. Corbett and the industry to swallow their pride and work with local municipalities to develop a responsible approach to natural gas drilling that will allow development of Marcellus Shale while creating a culture of true accountability and responsibility. I welcome the conversation about how to strike a balance between the economic benefits of natural gas development and protecting the people of Pennsylvania, knowing full well that this crucial part of the law is on our side and that our constitutional protections are not for sale.”

Pennsylvania Supreme Court Decisions:

The majority opinion can be found here.

The concurring opinion can be found here.

The dissenting opinions can be found here and here

< ============  SECOND REPORT ============= > Thursday 12/19/13-

 STATEIMPACT – a reporting project of npr member stations - 3:41 PM BY MARIE CUSICK

Pennsylvania Supreme Court strikes down controversial portions of Act 13

The state Supreme Court struck down several controversial portions of Act 13 today. The 2012 law made major updates to the rules governing Pennsylvania’s oil and gas industry.

In a 4-2 decision, the court held that portions of the law dealing with restrictions on local zoning violate Pennsylvania’s constitution. Chief Justice Ron Castille was joined by justices Todd, McCafferty and Baer in the majority. Justices Saylor and Eakin issued dissenting opinions.

Zoning rules deemed unconstitutional

One section of the law found unconstitutional called for statewide rules on oil and gas to preempt local zoning rules. Another section required municipalities to allow oil and gas development in all zoning areas.

In the majority opinion, the justices say both those provisions violate the Environmental Rights Amendment of the state constitution which guarantees, ”clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. ”

They cite Pennsylvania’s history with coal and timber as lessons which lead to the amendment.

“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.”

“When government acts,” they write, “the actions must on balance reasonably account for the environment of the affected locale.”

“A historic decision”

Jordan Yeager is an attorney with Curtin & Heefner, representing local governments who challenged Act 13.

“This decision elevates that constitutional provision and says it’s real and needs to be respected,” he says. “It’s a very important historic decision.”

Yeager says towns still can’t zone out oil and gas development entirely. The portions of Act 13 that were struck down had tried to remove their discretion on where it could go.

“This said you had to allow it in every zoning district,” he explains. “If you want to build a nursing home in a community, you can’t just put it anywhere, you have to only do it in those zoning districts where it’s allowed. Under Act 13, there were greater regulations for nursing homes than for gas drilling. It was an unprecedented overreach by the legislature.”

Environmental groups also applauded the decision.

“This ruling is a victory for our local communities, whose interests the Corbett administration has consistently put behind that of the oil and gas industry” said Sierra Club Pennsylvania Chapter President Jeff Schmidt.

“We are heartened to see that the Court recognized this massive overreach by the Pennsylvania legislature is indeed unconstitutional,” said Erika Staaf, of PennEnvironment.

“A negative message”

Governor Corbett issued a statement expressing his disappointment with the decision.

“We are continuing to review today’s decision,” Governor Corbett said. “We must not allow today’s ruling to send a negative message to job creators and families who depend on the energy industry.”

David Spigelmyer, president of the gas industry trade group, the Marcellus Shale Coalition, echoed similar sentiments.

“Although we will continue to collaborate with communities across the Commonwealth, today’s decision is a disappointment and represents a missed opportunity to establish a standard set of rules governing the responsible development and operation of shale gas wells in Pennsylvania,” he said in a statement.

Other issues

The court also found another section of Act 13 which allowed the Department of Environmental Protection to grant waivers for setback requirements from water sources to be unconstitutional.

The justices also weighed in on the so-called “doctor gag rule” of Act 13. The language in the law has some medical professionals concerned they could get in trouble for disclosing chemical trade secrets associated with gas drilling. The high court says that legal challenge can continue and it was sent it back to the lower Commonwealth Court.

< ============  THIRD REPORT ============= >  May 17, 2012- doctor gag rule follow up

Science And The Fracking Boom: Missing Answers - STATEIMPACT – a reporting project of npr member stations 

Pennsylvania Doctors Worry Over Fracking 'Gag Rule'

From WHYY

A new law in Pennsylvania has doctors nervous.

The law grants physicians access to information about trade-secret chemicals used in natural gas drilling. Doctors say they need to know what's in those formulas in order to treat patients who may have been exposed to the chemicals.

But the new law also says that doctors can't tell anyone else — not even other doctors — what's in those formulas. It's being called the "doctor gag rule."

'I Don't Know If It's Due To Exposure'

Plastic surgeon Amy Pare practices in suburban Pittsburgh where she does reconstructive surgeries and deals with a lot of skin issues. She tells me about one case, a family who brought in a boy with strange skin lesions.

"Their son is quite ill — has had lethargy, nosebleeds," Pare says. "He's had liver damage. I don't know if it's due to exposure."

The family lived near natural gas drilling activity, and there was some concern that the boy may have been exposed to some of the chemicals being used. Producing natural gas is a pretty industrial process and gives off a lot of fumes. It uses a lot of chemicals to open wells to get the gas flowing.

Pare's first step was to figure out what chemicals the drillers were using. But that information isn't easy to get. In this case, Pare says, the patient's family had a good lawyer who helped them find out what kind of chemicals the gas company was using.

"If I don't know what [patients] have been exposed to, how do I find the antidote? We're definitely not clairvoyant," she says.

Revealing Trade Secrets ... Sort Of

Plastic surgeon Amy Pare says it's important for doctors to know what kind of substances patients she's treating might have been exposed to.

Pennsylvania's new law was supposed to make things easier for doctors and patients. The law, which is similar to those in Texas and Colorado, requires drillers to list the chemicals used to produce oil or gas on a public website that doctors like Pare can access.

But the website doesn't list all the chemicals used; it leaves off those considered to be trade secrets. These are ingredients that a company says it has to keep secret in order to maintain an edge over its competitors. Before the law, doctors couldn't find out what those trade-secret chemicals were. Now, they can.

But there's a catch: Doctors can get the chemical names only if they sign a confidentiality agreement and agree not to share that information. That's a move that makes doctors like Pare nervous.

"As I understand it, it's legally binding, so if 20 years from now I hiccup that someone was exposed to zippity doo dah, I'm legally liable for that," she says.

It's not even clear whether the doctor can share the trade-secret ingredient with the patient or the patient's neighbors, co-workers or primary care doctor.

'A Mountain Out Of A Molehill'?

Ever since the law was signed earlier this year, doctors have been asking lots of questions. But authors of the law say doctors are overreacting.

"It's not to discredit those who are sincerely looking out for the health of others, but I think a mountain has been made out of a molehill," says Drew Crompton, a legislative staffer and one of the primary drafters of the law. "It's important to have disclosure, and that's what we tried to do. And I think this is coming from people who oppose the industry."

The law was modeled after a Colorado initiative, which was modeled after a federal Occupational Safety and Health Administration regulation. At a recent talk for local officials, Michael Krancer, the head of Pennsylvania's Department of Environmental Protection, defended what some are calling the "doctor gag rule."

"The 'gag order on physicians' — nothing could be further from the truth or more nonsensical than this," Krancer said. "The provisions of Act 13 are exactly like what we have already and had had in the federal system since the '70s. There's nothing new there."

But there are some differences. The federal law was designed for workers, while the new state laws cover everyone. And critics say some important parts of the federal law are missing in these state laws.

Balancing Trade Secrets And Public Health

Barry Furrow, the director of the health law program at Drexel University in Philadelphia, says writers of Pennsylvania's law made it vague.

"They've lacked definition. They haven't defined the boundaries of disclosure, so doctors are properly nervous," Furrow says. "What can they disclose to the state? What can they disclose to the community? It's just the patient and the doctor only. And this is a public health problem with toxic chemicals. It's much larger than one patient. It's going to be a community."

Pennsylvania's Department of Public Health recently issued a statement assuring doctors that they would be able to share information with their patients and public health officials. But Furrow wonders how well that statement would hold up in court.

"If Halliburton decides to sue a doctor, that's quite terrifying," he says. "You have a very large, probably rather aggressive company, given its history."

Howard Frumkin, dean of the School of Public Health at the University of Washington, is an expert in treating workers who have been exposed to chemicals on the job.

"In more than two decades of practicing occupational medicine, I'll tell you how often I was able to make the right diagnosis and plan the right treatment when I didn't know what the patients were exposed to — zero times," he says.

Frumkin says companies have a legitimate right to protect trade secrets. But he says there is also a legitimate public need to know about what they may have been exposed to.

"You need to balance off those two rights," he says. "In this case, it seems the law tried to make the balance but didn't quite get it right. There are very chilling statements there that would inhibit physicians and public health officials from getting information that they need."

Some Pennsylvania lawmakers are responding to doctors' confusion. A bill has been introduced to remove the need for doctors to agree to a confidentiality agreement.

< ============  FOURTH REPORT ============= > Thursday 12/19/13

Pennsylvania Supreme Court declares portions of shale-drilling law unconstitutional

By Don Hopey / Pittsburgh Post-Gazette

The Pennsylvania Supreme Court declared major provisions of the state's Marcellus Shale drilling law, Act 13, unconstitutional Thursday, including one that allows gas companies to drill anywhere, overriding local zoning laws.

The court's decision, on a 4-2 vote, also sent back to Commonwealth Court for review and disposition challenges by a physician to the Act 13 provisions that would have prevented doctors from telling patients about health impacts related to shale gas development, and a constitutional


Voting in the majority, which held that "several challenged provisions of Act 13 are unconstitutional," were Chief Justice Ronald Castille, and Justices Debra McCloskey Todd, Seamus McCaffery and Max Baer. Justices Thomas Saylor and J. Michael Eakin filed dissenting opinions.

Deron Gabriel, commission president in South Fayette, the only Allegheny County municipality to challenge the shale gas law passed in 2012, said the decision validating municipalities' zoning rights was a victory for all residents of the county and the state.

"Preserving zoning is vital to local planning efforts, in order to keep industrial activity out of residential and commercial areas," Mr. Gabriel said. "Now we can keep industrial activities away from our school and residences, and there's been more and more of a push by the industry to locate closer to the residential areas."

"We got the major thrust of what we were looking for. The drill-everywhere provision was declared unconstitutional and that part of the law was permanently enjoined," said John Smith, the lead attorney representing South Fayette and the other municipalities that brought the case.

Mr. Smith later issued a statement thanking the municipalities that signed up to challenge the law which was sought by the industry.

"A debt of gratitude," he wrote, "is owed to all municipalities and individuals who fought so hard to ensure that their rights and the rights of Pennsylvania citizens were not cast aside in favor of corporate interests." In addition to South Fayette, the municipal plaintiffs included Peters, Mount Pleasant and Robinson townships in Washington County, and Nockamixon and Yardley in Bucks County in Eastern Pennsylvania.

In affirming the municipalities' standing to bring the Act 13 challenge, which was challenged by the state's attorneys, Chief Justice Castille wrote in the 162-page majority decision that "[t]he protection of environmental and esthetic interests is an essential aspect of Pennsylvanians' quality of life and a key part of local government's role."

The decision also notes "how remarkable a revolution is worked by this legislation (Act 13) upon the existing zoning regimen in Pennsylvania, including residential zones," and it questions whether the General Assembly can pass laws inconsistent with the constitutional mandate to protect the environment.


"By any responsible account," Chief Justice Castille wrote, "the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and the future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction."

He goes on to say that although the state's regulatory powers are broad, they are "limited by constitutional demands, including the Environmental Rights Amendment."

The decision sent shock waves through the shale gas industry, which had sought legislation guaranteeing uniform statewide land use rules, and the Corbett administration and legislators who had championed passage of the oil and gas law changes.

Gov. Tom Corbett, who had supported and signed the legislation into law in February 2012, issued a statement saying he was disappointed by the decision. He maintained that Act 13 improved environmental protections while respecting local government rights.

"I will continue to work with members of the House and Senate to ensure that Pennsylvania's thriving energy industry grows and provides jobs while balancing the interests of local communities," Mr. Corbett said.


Marcellus Shale Coalition president Dave Spigelmyer issued a statement saying the industry lobbying organization was reviewing the decision to determine its impact on shale gas operations across the state.

Mr. Spigelmyer said the decision also is a reminder to policy makers of the state's ongoing business climate challenges.

"If we are to remain competitive and our focus is truly more job creation and economic prosperity," he said, "we must commit to working together toward common sense proposals that encourage -- rather than discourage -- investment into the Commonwealth."


Rep. Jesse White, D-Cecil, an outspoken opponent of Act 13, hailed the ruling as an affirmation of the state constitution's guarantee of "clean air and clean water" and the self-governance rights of local communities.

He said "a clear message has been sent to Gov. Corbett and his friends in the energy industry: Our fundamental constitutional principles cannot be auctioned off to wealthy special interests in exchange for campaign dollars. On this day, David has defeated Goliath."

Senate President Pro Tempore Joe Scarnati, R-Jefferson, and House Speaker Sam Smith, R-Jefferson, issued a joint statement saying they were "stunned" by a ruling "which will so harshly impact the economic welfare of Pennsylvanians" and criticized the opinion written by Chief Justice Castille for relying on "inaccurate anecdotes and unproven science."

"The consequences of this decision will likely be the increase of natural gas prices for consumers, while at the same time costing a multitude of jobs in Pennsylvania," they wrote.The two Jefferson County legislators also were critical of the Pennsylvania State Association of Township Supervisors, which they said supported the laws zoning language in legislative discussions prior to its passage, but opposed it in court.

State Senate Minority Leader Jay Costa, D-Forest Hills, and Sen. Matt Smith, D-Mt. Lebanon, said in separate releases that the Supreme Court's decision gives state legislators and the Corbett administration a second chance to craft a shale gas law that protects the environmental, property and health interests of state residents. Adam Garber, field director with PennEnvironment, a statewide environmental advocacy organization, said the court's decision shows that the state constitution's environmental rights provisions have "serious teeth."

"The Legislature made a huge overreach in trying to take over regulation of gas drilling from local municipalities," Mr. Garber said. "The court said there are serious health and environmental impacts from gas drilling that the Legislature did not address and that local communities ought to."

Don Hopey: dhopey@post-gazette.com or 412-263-1983.

< ============  FIFTH REPORT ============= > Dec. 19, 2013

State Supreme Court rules municipalities can limit what gas drillers can do

By Timothy Puko Tribune-Review 

The Pennsylvania Supreme Court tossed controversial portions of the state's oil and gas law reforms, letting municipalities retain control over where and when to allow drilling in their jurisdictions.  

The 4-2 ruling Thursday undoes the state's attempt — passed as Act 13 in February 2012 after years of debate — to create uniform rules and allow drilling in all types of neighborhoods in every municipality statewide. Without those new rules going into effect, municipal governments will be able to block off some, though not all, of their neighborhoods from drilling and subject drillers to reviews before issuing them drilling permits.  

South Fayette in Allegheny County and Cecil, Peters, Mt. Pleasant and Robinson in Washington County led the group that sued to strike down the state limits on local control. The municipalities argued that by limiting those powers, the law unconstitutionally barred them from protecting residents and property rights by keeping drilling away from schools, parks and businesses.  

The 162-page Supreme Court decision spoke at length of the state's history of environmental degradation, and decreed that the state does not have absolute power over municipalities in terms of environmental protection. Act 13 puts municipalities in direct conflict with their constitutional power to protect the environment, the court said, ruling that the state overstepped its powers by trying to apply uniform rules to all municipalities.  

“To put it succinctly, our citizens buying homes and raising families in areas zoned residential had a reasonable expectation concerning the environment in which they were living, often for years or even decades,” Chief Justice Castille wrote. “Act 13 fundamentally disrupted those expectations, and ordered local government to take measures to effect the new uses, irrespective of local concerns.” 

The court ruled on several issues in the case, and not all the decisions came down by a 4-2 margin. Several lawyers, industry and activist groups were still parsing the ruling. But on the key point — municipal power to restrict drilling — several agreed that the court was clear.  

“WE WON!!!!” Tracy Carluccio, Deputy Director of the Delaware Riverkeeper Network wrote in a brief advisory to other environmental groups. “Supreme Court rules against gas and Legislature on Act 13!!!”  

With more than 2,500 municipalities in the state, gas drillers will now have to deal with the uncertainty of different decisions from each one, said Ken Komoroski, an attorney at Downtown-based Morgan, Lewis & Bockius LLP,  

“It's certainly bad news, for everyone I think,” he said. “What the industry seeks is certainty, and that was lost as much as it could be lost.”  

The ruling could trigger a flurry of activity from drilling industry lobbyists and lawyers, experts had said as they awaited the high court's decision. The industry likely will pressure state lawmakers to try again at streamlining rules that can differ across all of the more than 2,000 municipalities in Pennsylvania. With the case settled, there's also the specter of new court challenges. 

 One big reason the state changed its oil and gas rules is that they are vague regarding the power of municipal governments. Court challenges have often been the only way to figure out whether municipal governments overstepped their power. Several municipalities passed new rules before lawmakers passed the reforms in Act 13 and now those laws could be tested. 

 The Pennsylvania Independent Oil and Gas Association (PIOGA) and the Pennsylvania State Association of Township Supervisors have been planning together in advance of the ruling to cooperate and try to avoid legal conflicts between drilling companies and municipalities, PIOGA executive director Louis D'Amico said Thursday. 

 “That doesn't help anybody,” he said. “It's very costly and it's always a battle when we go to court. Townships don't want it and we don't want it.” 

 The cased pitted the Pittsburgh-area suburbs against Pennsylvania over the state's new, wide-ranging collection of oil and gas law reforms. Those included a new fee assessed on each deep-shale gas well and strengthened environmental regulations. The fee and nearly all of the environmental rules were not part of the court battle. 

 The passage of Act 13 culminated three years of debate on how to modernize the state's rules to manage the new rush of shale gas drilling. Horizontal drilling and hydraulic fracturing began in the Marcellus shale about nine years ago, booming to more than 7,400 unconventional wells statewide, according to state records. 

 Pennsylvania municipalities cannot oversee environmental issues at well sites — that's the state's job — but long have had control over land-use decisions. Many communities moved to tighten those rules, requiring drillers to meet more conditions on noise, light and traffic at work sites before they could obtain permission to drill, especially in residential areas. 

 The high court's ruling affirms the right of municipalities to make those rules. They can require reviews before permitting each drill site within their borders and ban drilling in some neighborhoods, powers that Act 13 most notably eliminated. 

 Drilling companies and their supporters in state government pushed to limit local control and standardize the rules because there are many municipalities and the possibility for many different types of local rules. State and industry leaders saw those limits as a key part of the package that also put a fee on drillers for every well and required them to meet higher environmental standards. 

 If drillers want lawmakers to make another attempt to streamline local rules, details of the state Supreme Court ruling will have to guide the Legislature, experts said. One option may be to write a model ordinance for municipalities, then pass a law that allows them to get impact fee money only if they use that ordinance, industry attorney Komoroski said. 

 “If they can't do it with a sledgehammer, they're going to have to do with a carrot,” attorney Kevin McKeegan, a municipal land use specialist with Meyer, Unkovic & Scott LLP, Downtown, said in a December 2012 interview. 

 Industry lobbyists may have trouble getting the fractious General Assembly to take a second crack at limiting local control after it spent more than two years and failed to find a solution that passed the courts' test. Lawmakers struggled to deal with high-profile items like transportation funding and still has pension reform and liquor store privatization sitting in limbo with a difficult budget season and election year ahead. 

 Industry lawyers also are likely to be busy pushing legal challenges before the Pennsylvania Public Utility Commission, experts said. Act 13 clarified some of the environmental areas over which municipalities can't craft their own rules, and with the Supreme Court case finished, the industry will be free to challenge municipal governments that don't act to get into compliance. It may be their only way to get them to comply. 

 “So, regardless of how the ruling plays out, I would expect we'll have a lot of ordinances challenged,” said Ross Pifer, director of the Agricultural Law Resource and Reference Center at Penn State's Dickinson School of Law.

Read more: http://triblive.com/news/adminpage/5285484-74/state-rules-municipalities#ixzz2ny8VVXTo 

< ============  SIXTH REPORT ============= > Dec. 19, 2013

 Supreme Court declares part of Act 13 unconstitutional

by Paul J. Gough Digital Producer- Pittsburgh Business Times
The Pennsylvania Supreme Court's long-awaited ruling on the state's two-year-old Marcellus Shale law has declared parts of it unconstitutional, reaffirming local municipalities' rights to zoning when it comes to natural gas drilling.
The court's 4-2 decision agreed with municipalities' concerns about Act 13's prohibition on local regulation of gas wells and went against the commonwealth's role as trustee of natural resources. It said Act 13 "fundamentally disrupted" expectations of Pennsylvania residents who lived in residential zones, and that the General Assembly "transgressed" its powers both constitutionally and with the Environmental Rights Amendment.
The court said four sections violated the Environmental Rights Amendment. The ruling said Act 13 in part "swept aside" some parts of the constitution that had to do with municipalities' rights to regulate in existing zoning.
"Act 13's blunt approach … exacerbates the problem by offering minimal statewide protections while disabling local government from mitigating the impact of oil and gas development at a local level," the ruling said. It also said Act 13's environmental rules on permit decisions didn't work with the state's duty as trustee of public natural resources.
The case against Act 13 started in southwestern Pennsyvlania as several townships, concerned about drilling, fought back against the state Legislature's drilling law.
The strongly worded ruling was made by six members of the Pennsylvania Supreme Court. It was written by Chief Justice Ronald D. Castille and joined by Justices Debra McCloskey Todd and Seamus P. McCaffery. Justice Max Baer supported some of the ruling and wrote a concurring opinion. In dissent were Justices Thomas G. Saylor and J. Michael Eakin. Justice Joan Orie Melvin was not part of the ruling.
The plaintiffs included Robinson Township, Washington County; South Fayette; Peters Township; Cecil Township; and Mount Pleasant, among others. The defendants were the Pennsylvania Public Utility Commission, the Pennsylvania Department of Environmental Protection and the Attorney General's office.
The case had been argued in October 2012.
"To describe this case simply as a zoning or agency discretion matter would not capture the essence of the parties' fundamental dispute regarding Act 13," the ruling said. "Rather, at its core, this dispute centers upon an asserted vindiction of citizens' rights to quality of life on their properties and in their hometowns, insofar as Act 13 threatens degredation 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."
But in a dissent, Saylor wrote Act 13 was nothing more than the Legislature's exercise of power that helps both the economic and environmental interests. Eakin's dissent said municipalities have the power to manage land use, but it's not in the constitution and instead granted by the Legislature, which can take it away and balance local needs against the commonwealth's economy and the nation's desire for energy.
"The point is that there is one body with the authority to address the broad statewide issues that necessarily are involved here -- it simply cannot be done town by town or township by township," Eakin wrote. "It demands a comprehensive plan respectful of every citizen's right to the resource."
It isn't immediately clear the next steps for either side. Some of the case was sent back to the Commonwealth Court, whose ruling sparked the Supreme Court ruling. Several industry and environmental officials were still reading the ruling, which was issued around 2 p.m. Thursday.
State Rep. Jesse White, D-Cecil Township, said that the ruling showed "David has defeated Goliath."
"By affirming every Pennsylvanian’s constitutional right to clean air and clean water and upholding the right of local communities to govern themselves when it comes to certain aspects of natural gas development, a clear message has been sent to Governor Corbett and his friends in the energy industry: our fundamental Constitutional principles cannot be auctioned off to wealthy special interests in exchange for campaign dollars," White's statement said on his website.
Corbett hadn't immediately released a statement on the ruling.
Paul J. Gough is digital producer at the Pittsburgh Business Times. Contact him at pgough@bizjournals.com or 412-208-3827. You can also follow him on Twitter.

< ============  SEVENTH REPORT ============= > Dec. 20, 2013

Pa. Gas Drilling Decision Leaves Future Uncertain

< ============  EIGHTH REPORT ============= > Dec. 20, 2013

Pa. Court Sides With Towns in Gas Drilling Fight

HARRISBURG, Pa. December 20, 2013 (AP) By MARC LEVY and MARK SCOLFORO Associated Press

In a 4-2 decision, the Pennsylvania Supreme Court ruled the industry-friendly rules set out by the 2012 law violated the state constitution, primarily by displacing local control over local matters.

Seven municipalities had challenged the law that grew out of the state's need to modernize 20-year-old drilling laws to account for a Marcellus Shale drilling boom made possible by innovations in drilling and technology, most notably hydraulic fracturing. The process, also called fracking, has drawn widespread criticism from environmentalists and many residents living near drilling operations.

"Few could seriously dispute how remarkable a revolution is worked by this legislation upon the existing zoning regimen in Pennsylvania, including residential zones," wrote Chief Justice Ron Castille. He said the law's rules represented an unprecedented "displacement of prior planning, and derivative expectations, regarding land use, zoning, and enjoyment of property."

The law restricted local municipalities' ability to control where companies may place rigs, waste pits, pipelines and compressor and processing stations. The new zoning rules have never gone into effect because of court order. A narrowly divided lower court struck them down in 2012, but Corbett appealed, saying lawmakers have clear authority to override local zoning.

Among the objectionable provisions cited by the lawsuit were requirements that the high-impact operations be allowed in every zoning district, including residential areas, as long as certain buffers were observed.

"It's a tremendous victory for local governments, for local democracy, for public health and for the environment," said Jordan Yeager, one of the plaintiffs' lawyers. "It's a huge, huge victory for the people of Pennsylvania."

Environmental groups and Democratic lawmakers hailed the ruling, while Corbett, Republican lawmakers and industry groups responded with disappointment.

"We must not allow today's ruling to send a negative message to job creators and families who depend on the energy industry," Corbett said, adding he will continue to work to help the energy industry thrive. Republican leaders said they were unsure whether the decision invalidated impact fees that have generated hundreds of millions of dollars.

The municipalities argued the zoning restrictions ran counter to objectives of protecting the environment, health and safety of people who live there, and three of the six justices agreed. A fourth justice ruled that the law violated the municipalities' constitutional rights to due process to carry out community planning.

A lawyer for Senate President Pro Tempore Joe Scarnati, R-Jefferson, said Thursday the high court decision is a setback that will reopen the door to legal fights between municipalities and the drilling industry that the Legislature had sought to settle.

The drilling industry flocked to Pennsylvania in 2008 to tap into the Marcellus Shale natural gas formation and had sought the changes as a top priority, complaining of a complicated patchwork of municipal rules and some municipalities that had effectively tried to use zoning rules to ban drilling.

As part of a sprawling law that also toughened safety regulations over drilling and slapped a drilling fee on the industry, Corbett and Republican lawmakers approved the limitations over the objections of Democrats, who called them "corporate eminent domain."

Castille said supporters of the law did not fully acknowledge its practical effects in light of the coal industry's checkered record.

"The commonwealth's efforts to minimize the import of this litigation by suggesting it is simply a dispute over public policy voiced by a disappointed minority requires a blindness to the reality here and to Pennsylvania history," Castille wrote.

He said the geographic diversity of the state means "protection of environmental values ... is a quintessential local issue that must be tailored to local conditions."

Justice J. Michael Eakin said he would have upheld the law and had concerns about the power the majority gave to the state's thousands of local entities at the expense of the Legislature.

"Giving standing to some 2,500 sets of local officials to sue the sovereign based on alleged violations of individual constitutional rights is misguided, and will have precedential repercussions — I fear we will soon face a tide of mischief that will flow from such an ill-advised notion," Eakin said.


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