Agenda - Planning Commission - 03/06/2014

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Zoning Bulletin February 10, 2014 I Volume 8 I Issue 3 Municipalities contend Act 13 is unconstitutional in violation of the Environmental Rights Amendment to the Pennsylvania Constitution Citation: Robinson Tp., Washington County v. Com., 2013 WL 6687290 (Pa. 2013) PENNSYLVANIA (12/19/13)—This case addressed the issue of whether certain provisions of Act 13 of 2012 (a statute amending the Pennsylvania Oil and Gas Act) —which required that municipal zoning or- dinances be amended to include oil and gas operations in all zoning districts, and which precluded municipalities from seeking appellate review of the Pennsylvania Department of Environmental Protection's de- cisions on setback restriction waivers related to natural gas wells —were within the police powers of the Pennsylvania General Assembly or were unconstitutional in violation of the Environmental Rights Amendment to the Pennsylvania Constitution. The Background/Facts: This case involved expedited constitutional challenges to Act 13 of 2012, a statute amending the Pennsylvania Oil and Gas Act ("Act 13"). (58 Pa.C.S. §§ 2301-3504.) Act 13 comprises sweep- ing legislation affecting Pennsylvania's environment and, in particular, the exploitation and recovery of natural gas through hydraulic fracturing ("fracking") and horizontal drilling in a geological formation known as the Marcellus Shale Formation. The Marcellus Shale Formation has been known as a natural gas reservoir (containing primarily methane) for more than 75 years. The nat- ural gas industry's use of fracking and horizontal drilling to enhance recovery of natural gas from the Marcellus Shale Formation are controver- sial as to their effect on the environment and the landscape. Prompted by the development of the natural gas industry in the Marcel- lus Shale Formation, Act 13 became law in February 2012. Primarily, Act 13 repealed parts of the existing Pennsylvania Oil and Gas Act and added provisions recodified.into six new chapters in Title 58 of the Pennsylvania Consolidated Statutes. Among the new chapters of the Oil and Gas Act is Chapter 33, which prohibits any local regulation of oil and gas operations, including via environmental legislation, and requires statewide uniformity among local zoning ordinances with respect to the development of oil and gas resources. (See 58 Pa.C.S. §§ 2301-3504). More specifically, § 3304 implements a uniform and statewide regulatory regime of the oil and gas industry by articulating narrow parameters within which local government may adopt ordinances that impinge upon the dcvelopinent of those resources. (See 58 Pa.C.S. §§ 3215(b)(4), 3304.) In March 2012, several Pennsylvania municipalities, two residents, elected officials, a nonprofit environmental group and its executive direc- tor, and a Pennsylvania physician (together, the "Citizens") brought a legal action challenging Act 13 as being unconstitutional. Among other © 2014 Thomson Reuters 3