HARRISBURG — The Pennsylvania Supreme Court on Thursday struck down portions of a law that stripped some of the powers municipalities have to decide where the booming natural gas industry can operate — portions that the industry had sought from Gov. Tom Corbett and lawmakers.
The justices ruled the 2012 law unconstitutionally restricted the power of municipalities, although the 4-to-2 majority disagreed as to why it was unconstitutional.
Seven municipalities challenged a law known as Act 13, which 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.
The law restricted local municipalities’ ability to control where companies may place rigs, waste pits, pipelines and compressor and processing stations.
Among the objectionable provisions cited by the lawsuit are requirements that drilling, waste pits and pipelines be allowed in every zoning district, including residential districts, as long as certain buffers are 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.”
The municipalities said the zoning restrictions run 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.
Although the law passed last year, the new zoning rules had never gone into effect by court order. A narrowly divided lower court struck them down in 2012, but Corbett appealed, saying lawmakers have clear authority to override local zoning.
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.”
Corbett issued a statement expressing his feelings on the decision: “I am disappointed that the Supreme Court has invalidated some key provisions of Act 13. We are continuing to review today’s decision. Act 13 was a bipartisan accomplishment between the Administration and members of the General Assembly, which raised the bar on environmental protection standards while respecting the rights of local governments.”
“The Act was crafted with strong input and support from Pennsylvania’s local government organizations. 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. “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.”
On the Democratic side of the aisle, senators responded with praise for the court’s ruling.
State Sen. John Yudichak, of Plymouth Township, the Democratic chairman of the Senate Environmental Resources and Energy Committee, called the ruling “a significant victory for Pennsylvania’s local governments, our environment and our economy – as it restores local control and gives the legislature another opportunity to maximize the economic potential of our Marcellus shale drilling industry.”
“Act 13 wrongly stripped away the rights of local governments to zone industries within their municipal boundaries – and this lengthy opinion rightly restores local control and allows these local governments to have an input in protecting the environment,” Yudichak said. “The Marcellus shale industry has the potential to change the course of Pennsylvania’s economy for the next generation as long as we continue to enact smart regulations and enforce strong policies to protect our environment. It is my hope that this opinion forces the legislature’s hands to seriously consider stronger environmental protections and a responsible severance tax in 2014.”
Earlier this year, Yudichak and his colleagues in the Senate Democratic Caucus filed an amicus brief in support of overturning the blanket local zoning preemption provision and the setback requirements related to sensitive water resources in Act 13.
Senate Minority Leader Jay Costa, D-Allegheny County, called on the governor to “work with legislators on a balanced plan that includes a responsible approach to drilling restrictions and community protections.”