United States: "Robinson Township v. Commonwealth": What Does It Mean For Oil And Gas Development And Land Use Regulation?

Two months have passed since the Pennsylvania Supreme Court's landmark decision in Robinson Township v. Commonwealth,¹ which invalidated Pennsylvania's efforts to regulate land uses associated with oil and gas operations on a uniform statewide basis. Even so — and despite the ink that journalists, lawyers and other commentators have used analyzing the decision — observers are still trying to figure out what it ultimately means for oil and gas development, for land use regulation more broadly and for the overall course of environmental regulation and litigation in Pennsylvania.

This is perhaps inevitable, given that the case generated four separate opinions spanning more than 100 pages and especially given that the four-justice majority could not agree on a rationale for invalidating statewide zoning rules. But the confusion that has resulted is not simply a function of the decision's length and the court's disagreements.

Both the three-justice plurality and the concurring opinion, which adopted the Commonwealth Court's rationale, could have extraordinary breadth. The decision has the potential to fundamentally alter the relationship between the judiciary, legislature and executive branches, rewrite the relations between Pennsylvania and its local governments, and expand judicial review over all governmental actions that have any arguable impact on Pennsylvania's aesthetic, natural or historical resources. Whether that turns out to be the case will depend on future rulings.

ACT 13'S OVERHAUL OF OIL AND GAS REGULATION AND THE ENSUING COURT CHALLENGE

Act 13 of 2012, one of Republican Gov. Tom Corbett's legislative priorities, was a comprehensive legislative effort to address various policy issues that had arisen as a result of the Marcellus Shale "boom" in northern and western Pennsylvania. Among other things, Act 13 sharply curtailed local regulation of oil and gas activities. For example, it allowed oil and gas wells, pipelines and impoundments in every zoning district, using setback requirements rather than categorical prohibitions to limit activities in high-density areas, and allowed compressor stations and gas processing plants in industrial and agricultural zones, subject to setbacks and noise limits.

The act also prohibited municipalities from treating oil and gas operations differently from other land uses and imposed time limits on local consideration of applications.² Act 13 also defined minimum setbacks for operations near streams and wetlands but gave the state Department of Environmental Protection authority to waive these restrictions.³

Act 13 was highly controversial and was immediately challenged in the Commonwealth Court, a specialized court with jurisdiction over suits against the commonwealth. The plaintiffs argued that Act 13 violated the Pennsylvania Constitution's provisions protecting the inherent rights of mankind, limiting eminent domain and guaranteeing the conservation of natural resources, among other things. The plaintiffs also argued that Act 13 violated the "separation of powers" doctrine and the U.S. Constitution's due process clause. The matter moved expeditiously and was decided summarily only five months after Act 12 was enacted.

The Commonwealth Court narrowly held 4-3 that Act 13's statewide land-use regime violated principles of substantive due process because it "allow[ed] incompatible uses in zoning districts," failed to "protect the interests of neighboring property owners from harm, alter[ed] the character of the neighborhood and ma[de] irrational classifications."⁴ The Commonwealth Court also held that DEP's authority to grant variances from stream and wetland buffer zone requirements was an unconstitutional delegation of legislative powers.⁵ The court rejected the remaining challenges to other aspects of Act 13.

To the dissent, "[t]he desire to organize a municipality into zones made up of compatible uses is a goal, or objective, of comprehensive planning ... [but] it is not an inflexible constitutional edict."⁶ The dissent also said it was unwise, despite "legitimate concerns and questions about Act 13 ... to pass upon the wisdom of a particular legislative enactment."⁷

The state Supreme Court accepted the case for review on an expedited timetable and heard argument in October 2012, but the decision languished for more than a year.

THE SUPREME COURT'S DECISION

In its Dec. 19, 2013, decision, the court invalidated certain of Act 13's core provisions, including its statewide land-use regulation of oil and gas operations. The majority split 3-1 on the fundamental rationale, however, leaving no majority opinion articulating a consistent view of the constitutional limitations on the commonwealth's authority.

The lead opinion was written by Chief Justice Ronald Castille (typically viewed as a conservative voice on the court) and found that the plaintiffs' claims primarily implicated the Environmental Rights Amendment of the Pennsylvania Constitution, Article I, Section 27. The amendment provides "a right to clean air, pure water and to the preservation of the natural, scenic, historic and esthetic values of the environment," declares that "Pennsylvania's public natural resources are the common property of all the people, including generations yet to come," and obligates the commonwealth "[a]s trustee of these resources" to "conserve and maintain them for the benefit of all the people."

Although admittedly there was little precedent for this conclusion,⁸ and the parties below had devoted little attention to the issue,⁹ the plurality expressed a broad view of governmental obligation and citizen rights under the amendment. They not only viewed the amendment as a source of legislative authority, as precedents had suggested, but construed it to create "an obligation on the government's behalf to refrain from unduly infringing upon or violating the right, including by legislative enactment or executive action."

As such, the plurality construed the amendment to "require[] each branch of government to consider in advance of proceeding the environmental effect of any proposed action."¹⁰ Further, they saw the amendment as "a bulwark against actual or likely degradation" that "would permit not only reactive but anticipatory protection of the environment for the benefit of present and future generations."¹¹

The plurality also for the first time gave municipalities independent authority not flowing from an explicit state grant of power, ruling that the General Assembly "has no authority to remove a political subdivision's implicitly necessary authority to carry into effect its constitutional duties."¹² That authority, to the plurality, has teeth: The constitutionality of a particular governmental action "is a quintessential local issue that must be tailored to local conditions" and "cannot reasonably be assessed on the basis of a statewide average."¹³

Finally, the plurality construed the amendment to be self-executing, creating "a constitutional right personal to each citizen" that is judicially enforceable.¹⁴

In light of these conclusions, the plurality not surprisingly concluded that Act 13's statewide land-use and waterway buffer standards were unconstitutional. The plurality's compared Marcellus Shale drilling to the timber industry's deforestation, and to the "devastating" and "shortsighted" effects of unregulated coal mining, and found that "development of the natural gas industry in the commonwealth unquestionably has and will have a lasting and undeniably detrimental impact" on "core aspects of Pennsylvania's environment."

Justice Max Baer concurred but would have affirmed on the same ground cited by the Commonwealth Court, opining that Act 13's statewide land-use regime violated substantive due process. All four justices in the majority ruled against the commonwealth on all but one of the remaining issues¹⁶ and remanded the matter for resolution of these issues and to decide whether any remaining valid provisions of Act 13 are severable.

Justices Thomas G. Saylor and J. Michael Eakin dissented, saying the majority "substitut[ed] their own policy preferences" in denigration of the Legislature's "superior resources for information-gathering, debate and deliberation";¹⁷ "completely redefine[d] the role of municipalities relative to the sovereign";¹⁸ "hypothesiz[ed] an unreasonably deleterious impact of Act 13 on the environment ... without a shred of evidentiary support";¹⁹ and articulated a "sweeping, general and necessarily aspirational" ruling that is "too broad and insufficiently defined to provide meaningful guidance in the future."²⁰

The commonwealth has asked for reargument, seeking to present a more complete factual record, but the court denied the request Feb. 21. (Justice Saylor dissented, stating that the commonwealth "should be afforded a reasonable opportunity to present evidence" because "the judiciary simply does not possess the ability to divine the consequences of a legislative enactment absent a developed factual record.")

WHAT WE THINK WE KNOW ABOUT ROBINSON TOWNSHIP

The lack of a majority (and the participation of only six justices) makes it hazardous to predict the ultimate effect of the court's opinions. (The decision could turn out to be a "one-off" whose precedential effect is muted.) Even so, some immediate conclusions are apparent:

• Statewide land-use regulation is now practically impossible. Given the court's emphasis on the need for local zoning control (either under the Environmental Rights Amendment or substantive due process), it may be difficult, perhaps impossible, to regulate land use on a statewide basis.
• Some municipalities will restrict or even try to ban oil and gas operations. Given municipalities' new freedom to regulate oil- and gas-related land uses, some municipalities may impose further restrictions, making oil and gas development in some locales much more expensive or even effectively impossible.
• Local zoning is now "constitutionalized." The Commonwealth Court and Justice Baer's concurrence recognized a constitutional right to retain a particular zoning classification. While the plurality bypassed such a holding, it showed sympathy for the principle (for example, by stressing the "reasonable expectations" that arise out of land use restrictions). As a result, it is difficult to see how zoning rules could be revised to allow more intense land uses, and the General Assembly, having given permission to enact local zoning, now appears to lack the ability to withdraw that authority.
• Municipalities in some areas now have equal or greater power than the state. As the dissent noted, the majority opinions have altered the basic relationship between the commonwealth and its municipalities. For the first time, municipalities now have rights that are separate from and that may be inconsistent with those of the General Assembly that created them. By allowing localities to sue the commonwealth and by giving them an equal role in enforcing the Environmental Rights Amendment, the ruling effectively gives counties, cities and boroughs independent status as equal sovereigns.

WHAT WE DON'T YET KNOW

In other respects, the Robinson Township decision's impact remains unclear. In large part, it will depend on whether a Supreme Court majority ultimately buys into the plurality's construction of the Environmental Rights Amendment.

• Are other oil and gas regulations vulnerable? At present, municipalities cannot regulate matters that are within the scope of the Oil and Gas Act.²¹ These regulations may now be subject to attack on the ground that they violate the Environmental Rights Amendment or run afoul of local land-use prerogatives.
• Will Pennsylvania courts now be broadly hostile to the oil and gas industry, especially on "citizen-facing" issues? The plurality's opinion reflects a deep distrust of oil and gas development. On a thin record, three justices reached out to make definitive factual findings on an issue that in fact is subject to considerable debate. The plurality's blunt language may discourage lower courts from resolving close questions in favor of oil and gas producers, particularly in disputes involving citizens.
• Is there now a constitutional cause of action to challenge any act or omission that could have an environmental or esthetic impact? Under the plurality's construction of the Environmental Rights Amendment, citizens and municipalities can bring a broad "constitutional tort" claim, allowing them to challenge any governmental act or omission that threatens the values promoted by the Environmental Rights Amendment.
• Can citizens indirectly challenge private activities by challenging government "inaction"? It may now be the case — even absent an affirmative governmental act — that litigants can block purely private activities by claiming that the government, by failing to regulate or bar private action, has violated the Environmental Rights Amendment.
• Does Article I, Section 27 effectively require pre-development "environmental impact assessments"? Because the plurality reads the Environmental Rights Amendment to require government to consider the environmental impact of any proposed action "in advance," including not only "actual" but also "likely degradation," it may require that any governmental action be preceded by an assessment of likely environmental impact, without guidance as to how that is to be accomplished.

WHAT WE CERTAINLY KNOW

The one thing that is clear is that Robinson Township will provide fuel for years of litigation, as litigants and courts address the many questions that the decision leaves unanswered. Already, politicians, citizens and advocacy groups are relying on the Environmental Rights Amendment to support policy arguments. (For example, one state representative recently criticized proposed DEP regulations governing surface operations at drilling sites, arguing that DEP failed to fulfill its obligation under the Environmental Rights Amendment to protect natural resources from pollution.) Depending on how these open questions are resolved, questions about the balance of power between the branches of state government, between the commonwealth and its municipalities, and between competing public policy goals, the impact on all Pennsylvanians is likely to be profound.

Originally published by Westlaw Journal: Environmental.

Footnotes

1 No. 63 MAP 2012, ___ A.3d ___, 2013 WL 6687290 (Pa. Dec. 19, 2013).

2 58 Pa. Cons. Stat. § 3304(b).

3 Id. at § 3215(b).

4 Robinson Twp. v. Commonwealth, 52 A.3d 463, 485 (Pa. Commw. Ct. 2012).

5 Id. at 490-93.

6 Id. at 496 (Brobson, J., dissenting).

7 Id. at 498.

8 2013 WL 6687290, at *32, *47.

9 Id. at *25.

10 Id. at *33 (emphasis added).

11 Id. at *34, *43.

12 Id. at *34, *55.

13 Id. at *58.

14 Id. at *44 n.52, *33 n.39, *53, *34.

15 Id. at *54-*55.

16 While the court held the Public Utility Commission could issue orders or advisory opinions assessing compliance with Act 13, that authority may now be a moot point given that the court invalidated the land-use regulations that the PUC was to interpret and apply.

17 Id. at *86 (Saylor, J., dissenting).

18 Id. at *87.

19 Id. at *87, *89.

20 Id. at *90 (Eakin, J., dissenting).

21 See Range Resources – Appalachia v. Salem Twp., 964 A.2d 569 (Pa. 2009).

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