The wait is over. Portions of Act 13 have been ruled unconstitutional by the Pennsylvania Supreme Court one year and two months after oral arguments. On December 19, 2013, the 166 page opinion authored by Chief Justice Castille found the allowance of oil and gas activities in all zoning districts (Chapter 33) and the mandatory waiver of setback provisions from water (§3215(b)(4)) in Act 13 to be unconstitutional for violating Art. 1 § 27 of the Pennsylvania constitution. In addition, the Supreme Court overturned the Commonwealth Court’s ruling and granted Mehernosh Khan, M.D to have standing to challenge Act 13’s order (§3222.1(b)) which does not allow doctors to reveal trade secrets of the fracking compounds after treating a patient with an illness related to fracking. The court reasoned that Dr. Khan has standing because Act 13’s order will “affect whether Dr. Khan, and other medical professionals similarly situated, will accept patients and may affect subsequent medical decisions in treating patients.” Justice Todd, Justice McCaffery, and Justice Baer joined in the opinion and Justice Saylor and Eakin dissented. Justice Orie did not participate in the ruling. For a more detailed explanation of the aforementioned provisions visit Robinson Township Oral Arguments: A Mixture of Oil and Water.
The ruling was groundbreaking for constitutional law in Pennsylvania. The court ruled for the first time that the state’s police powers are limited by Art. 1 § 27 of the constitution known as the Environmental Rights Amendment (ERA). The court found the zoning provisions of Section 33 and setback waiver 3215(b)(4) provisions to be unconstitutional because the state was attempting to use police powers which violated the state’s duty as trustee of the environmental under ERA. The ERA, enacted in 1970, gave the state the power as trustee of the environment and natural resources of the state for the benefit of the people which allows the government to enact legislation consistent with the trust’s purposes.
“The Environmental Rights Amendments provision speaks on behalf of the people, to the people directly, rather than through the filter of the people’s elected representatives to the General Assembly.”
The purpose of the trust is to give the citizens the right to clean air and pure water, and to the preservation of natural, scenic, historic and esthetic values of the environment. These rights are reserved by the ERA for the common ownership of the people, including future generations, of Pennsylvania’s public natural resources. The ERA also establishes the state’s duties in respect to Pennsylvania’s property within the trust. These duties are negative (prohibitory) and affirmative (implicating enactment of legislation and regulations). The court reasons that the creation of the ERA was from previous attempts to exploit natural energy resources (coal) in PA helped ruin our environment and the livability of the state, now that the citizens and municipalities enjoy these protections, it is the their constitutional right to utilize such rights.
The court used the ERA to strike down both the zoning provisions of Chapter 33 and the waiver of setbacks in §3215(b)(4). Under the prohibitory clause of the ERA the state was cannot to enact either of these laws because they violate the citizens’ rights to clean air, pure water, and the preservation of the natural values of the environment. The commonwealth attempted to enact Act 13 under their police powers which are to “promote public health, safety, morals, and the general welfare.” This is the first time in Pennsylvania Constitutional history the ERA has been utilized to limit the scope of the state’s police power.
In regards to the zoning mandates, the citizens were successful in an ERA challenge because the zoning mandates overruled pre-existing ordinances which were primarily created for the benefit of the environment and create reasonable expectations for the citizens. Because Act 13 requires municipalities to disregard their own duties under the ERA the court ruled:
“The General Assembly can neither offer political subdivisions purported relief from obligations under the Environmental Rights Amendment, nor can it remove necessary and reasonable authority from local governments to carry out these constitutional duties.”
The ERA was also used to strike down §3215(b)(4) as well in relating to the mandatory waiver of setback restrictions from existing water sources. The ERA requires the state to “conserve and maintain” the waters of the Commonwealth. Section 3215(b)(4) does not give any sort of” readily-enforceable” environmental standards to the DEP as to when to grant a well permit or setback waiver, thus failing to comply with the command of the ERA which requires the state to “conserve and maintain” the waters of the Commonwealth.
The court was explicit in stating that the ERA trumps the economic issues behind the adoption of Act 13. This is a clear statement to the legislature that future attempts to regulate the oil and gas industry and other environmental issues will be subject to a stricter restriction from the ERA. While acknowledging that development of the economic well-being of the state is vital, the court stressed that: “economic development cannot take place at the expense of an unreasonable degradation of the environment.” The legislature will now have to be more cognizant of the ERA’s prohibitory clause in crafting future oil and gas and environmental laws. State action affecting the environment typically only had to satisfy a more traditional police power limitation which required a law to promote public health, safety, morals, and the general welfare which are be reasonable and non-discriminatory. Pennsylvania entered into a new era of the environmental constitutional law with this ruling.
Regardless of one’s (assumed strong) opinion of Act 13, the constitutional determination of the law was symbolically fitting. By using a constitutional provision which was never before invoked to limit the police powers seems like a natural result in striking down an all-encompassing law which was never before attempted in the messy saga of Act 13. Act 13 was a daring move by the commonwealth which was met by a daring response from the state’s highest court.
The court itself acknowledges the struggle it is undertaking in developing new state constitutional law in creating limitations of the police power by the ERA. The future struggle interpreting the new constitutional rights from this ruling will take quite some time and present the courts, attorneys, and the state with difficult questions to answer on both the state and local level. Pennsylvania citizens are now entitled to enjoy environmental rights on par with political rights (based on the ERA’s placement in the Constitution). The future of determining the state’s citizens’ collective environmental rights will be difficult as no clear future directive was expressed as to when state action violates the ERA. Where to draw a line as to how much the ERA limits state action will be the struggle Pennsylvanian courts must cope with in future cases where petitioners argue the ERA. The Act 13 ruling not only affects oil and gas within the state but ushered in an entire new chapter of Pennsylvania constitutional history.