Agenda - Planning Commission - 12/01/2016

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t Zoning Bulletin November 10, 2016 1 Volume 10 1 Issue 21 regulates the gas and oil industry.Among other things,Act 13 repealed parts of Pennsylvania's existing Oil and Gas Act of 1984 and created six new chapters therein. Soon after the passage of Act 13, seven municipalities, as well as two individuals,a nonprofit environmental group and its director,and a Pennsylvania licensed physician (collectively, the "Citizens") challenged the new law. The Citizens asked the court to declare Act 13 unconstitutional and issue a perma- nent injunction against its enforcement. Eventually the case made its way to the Supreme Court of Pennsylvania where that court struck down certain sections of the Act as violative of the Pennsylvania Constitution and enjoined them from operation and effect.Among the sections of Act 13 declared unconstitutional were §3303 and§3304. See- tion 3303 prohibited local governments from enacting or enforcing environmen- tal legislation regulating oil and gas operations by explicitly providing that "environmental acts . . , to the extent that they regulate oil and gas operations, occupy the entire field of regulation, to the exclusion of all local ordinances." Section 3304 required that all municipal ordinances regulating oil and gas opera- tions be uniform, and mandated that certain drilling and ancillary activities at- tendant to the production of natural gas be allowed in every zoning district in a local political subdivision—existing zoning laws notwithstanding. In remanding the case back to the Commonwealth Court,the Supreme Court of Pennsylvania asked the lower court to, among other things, determine whether any remaining provisions of Act 13,to the extent they were valid,were severable.In other words,the court sought a determination as to whether the en- tirety of Chapter 33 of Act 13 was unenforceable, including §§ 3305 through 3309 which established "a mechanism by which to enforce compliance [with the Act 13 prohibitions on local government regulation of the oil and gas industry.]" r Among other things,the Supreme Court of Pennsylvania also asked the Com- monwealth court to revisit the Citizens'claim that§3241 of Act 13 violated the Pennsylvania_and United States Constitutions (Fifth Amendment)prohibitions j against the taking of private property for private use.The'Supreme Court of Pennsylvania determined that the Commonwealth Court had improperly dismissed that claim. Section 3241 allowed "a corporation empowered to transport, sell or store natural gas or manufactured gas in [Pennsylvania]"the j right to"appropriate an interest in real property located in a storage reservoir or j 1 reservoir protective area for injection,storage and removal from storage of nat- ural gas or manufactured gas in a stratum which is or previously has been com- mercially productive of natural gas."In other words,it allowed a corporation to take private property by eminent domain in order for the corporation to store natural or manufactured gas. On remand,among other things,the Commonwealth Court held that§§3305 through 3309 were not severable from (the already ruled unconstitutional) §§3303 and 3304 and were therefore enjoined from enforcement. With regard to the eminent domain issue, the Commonwealth Court ruled that§3241 did not violate the Fifth Amendment to the United States Constitu- tion or Article I, § 10 of the Pennsylvania Constitution by permitting a private corporation to appropriate a landowner's interest in real property for storage of natural or manufactured gas.The court reasoned that§3241 granted the power of eminent domain only to a corporation that is"empowered to transport,sell or ©2016 Thomson Reuters 9