In a decision that breaks new legal ground by recognizing and enforcing environmental rights, the Pennsylvania Supreme Court last week ruled that key parts of Act 13—the state’s controversial pro-fracking law—are unconstitutional because they violate the state’s Environmental Rights Amendment (EnRA). On a 4-2 vote, the Court struck down a provision that exempted fracking operations from local zoning laws, which would have forced local governments to allow drilling anywhere, including in areas zoned residential.
In fracking, which has been going on in Pennsylvania for about a decade, energy companies use powerful pumps to force a pressurized mix of water, sand and chemicals into deep layers of shale, causing fractures that allow the extraction of otherwise unavailable natural gas. Although the mix is about 99% sandy water, the remaining 1% includes highly toxic chemicals, including methanol, hydrofluoric acid, sulfuric acid and formaldehyde.
Not content with the already rapid growth of fracking in his state, in 2011 Republican Gov. Tom Corbett declared that he wanted to “make Pennsylvania the hub of this [fracking] boom.” Corbett pushed hard for enactment of Act 13, including a provision demanded by industry that stripped cities and counties of any power to regulate fracking, including via zoning laws.
Critics charged that the natural gas industry bought passage of the bill with enormous campaign contributions to key politicians, including Corbett, who took more than $1.6 million from the industry. Rep. Brian L. Ellis, who sponsored the House bill, took $23,300; Sen. Joseph Scarnati, the senate president pro-tem who sponsored the Senate bill, took $293,334; Rep. Dave Reed, chair of the majority policy committee, received $105,732; and Rep. Mike Turzai, majority floor leader, got $79,100. All are Republicans and all voted for Act 13.
Although an intermediate appeals court called the Commonwealth Court struck down the anti-zoning provision in 2012, it did so for very different reasons. The Commonwealth Court held that the provision violated the people’s due process rights by forcing local governments to amend or ignore their zoning ordinances without regard for state-mandated basic zoning principles and thus placed contradictory duties on them that they could not possibly fulfill.
The Pennsylvania Supreme Court instead relied on the Environmental Rights Amendment, which was made part of the state constitution in 1971 after it was passed unanimously by both houses of the state legislature and ratified by a 4 to 1 popular vote landslide. The amendment states that the “people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” [Pa. Const. Article I, § 27].
Based on a review of the environmental problems already caused by a decade of fracking in the keystone state, the opinion by Chief Justice Ronald Castille finds that “by any responsible account 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.”
Because the EnRA makes “[t]he protection of environmental and esthetic interests an essential aspect of Pennsylvanians’ quality of life and a key part of local government’s role,” the court held that the state’s regulatory powers, which are admittedly broad, are “limited by constitutional demands, including the Environmental Rights Amendment.”
Although Gov. Corbett promised action “to ensure that Pennsylvania’s thriving energy industry grows and provides jobs while balancing the interests of local communities,” the Court opinion gives little guidance on how the anti-zoning law could be resurrected without surrendering the statewide uniformity in regulation that the energy industry wanted.
Voting in the majority were Chief Justice Ronald Castille, and Justices Debra McCloskey Todd, Seamus McCaffery and Max Baer. Justices Thomas Saylor and J. Michael Eakin dissented. The state Supreme Court also told the court below to reconsider two issues: a challenge by a physician to Act 13 provisions regarding trade secrecy that limit the ability of doctors to treat patients who may have health problems because of exposure to fracking chemicals, and an argument that the law unconstitutionally benefits a single industry.
To Learn More:
Pennsylvania Supreme Court Declares Portions of Shale-Drilling law Unconstitutional (by Don Hopey, Pittsburgh Post-Gazette)
HUGE Victory!: PA Supreme Court Says State Can’t Force Fracking on Local Communities (by Daniel Raichel, NRDC Switchboard)
Internal EPA Report Conflicts with Agency’s Stance on Fracking Contamination in Pennsylvania Town (by Noel Brinkerhoff, AllGov)
Pennsylvania Judge, Citing 1776 Law, Orders Fracking Compensation Disclosure (by Noel Brinkerhoff and David Wallechinsky, AllGov)