Peacock Tales • Fall 2014

Act 13 in the Aftermath of Robinson

By Eric Harbison

The explosion of unconventional gas development in Pennsylvania, particularly the horizontal hydrofracturing of the Marcellus shale play, forced the Pennsylvania legislature to reexamine the viability of Pennsylvania’s once seminal Oil and Gas Act enacted in 1984. After determining that the existing law lacked the dexterity to address the novel requirements of modern production practices, the legislature opted to overhaul the original Oil and Gas Act and, in 2012, passed the Unconventional Gas Well Impact Fee Act, known colloquially as Act 13.

Though the specific provisions of Act 13 are broad in scope, at its core Act 13 attempts to streamline petro-development throughout the Commonwealth by establishing a uniform set of rules to govern unconventional oil and gas production. Nowhere is this purpose more explicit than in the Act’s zoning language.

Put succinctly, the zoning-related provisions of Act 13 operate to superced local regulation of oil and gas operations and require a single, Commonwealth-wide standard for zoning ordinances related to oil and gas. The system embodied by Act 13 relies on various setback requirements (as opposed to categorical prohibitions) to limit development in densely populated and protected environmental areas.

Controversial from the start, Act 13 was quickly subject to constitutional scrutiny. Just six weeks after it was signed into law, seven municipalities and local officials, along with an environmental organization and a physician, challenged numerous elements of the Act in what would become the landmark Robinson Township decision. The Commonwealth Court of Pennsylvania, where the suit was initially filed, ultimately held that parts of Act 13 were unconstitutional, including the zoning scheme. The remaining sections challenged by the lawsuit were found constitutionally compliant and, in the end, both sides appealed the decision.

Though the appeal was quickly accepted for review by the Supreme Court of Pennsylvania and argued shortly thereafter, it took more than a year for the Supreme Court to issue a ruling. The result: a sprawling 162-page plurality opinion that affirmed nearly every position of the Commonwealth Court. The decision was immediately polarizing. Where the Commonwealth Court had found Act 13’s overarching zoning scheme to be in violation of substantive due process rights, the Supreme Court instead relied on the Environmental Rights Amendment of the Pennsylvania Constitution - an argument specifically rejected by the Commonwealth Court and a position without precedent in Pennsylvania. The Corbett administration’s request for reconsideration of the December 2013 decision was denied.

Because certain portions of Act 13 were returned to the lower courts for additional consideration, including the question of whether the Act remains a workable piece of legislation absent the provisions stricken by the Supreme Court, the law as it applies to oil and gas operations in Pennsylvania remains in a state of flux. The Robinson decision leaves previously settled elements of oil and gas regulation in Pennsylvania exposed to renewed challenge. By affording the Environmental Rights Amendment a newfound level of deference, it opens the door for a wide range of environmental actions by citizens claiming a violation of their “right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.” Moreover, municipalities are now better positioned to leverage their zoning authority to achieve their desired local outcomes and this authority in the wake of Robinson, appears to have enhanced constitutional protection.

Until these uncertainties are fleshed out by the courts, and to a lesser extent the legislature, citizens and operators alike will have to navigate a murky post-Robinson legal landscape as both sides grapple with the changing shape of oil and gas law in Pennsylvania.

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