{"id":136,"date":"2013-05-19T14:02:39","date_gmt":"2013-05-19T14:02:39","guid":{"rendered":"http:\/\/sites.law.duq.edu\/joule\/?p=136"},"modified":"2017-10-11T19:50:52","modified_gmt":"2017-10-11T19:50:52","slug":"robinson-township-oral-arguments-a-mixture-of-oil-and-water","status":"publish","type":"post","link":"https:\/\/sites.law.duq.edu\/joule\/robinson-township-oral-arguments-a-mixture-of-oil-and-water\/","title":{"rendered":"Robinson Township Oral Arguments: A Mixture of Oil and Water"},"content":{"rendered":"

There\u2019s no doubt that the oil and gas industry has brought Pennsylvania wealth and created more jobs. \u00a0However, oil and gas drilling also brings with it environmental concerns.\u00a0 One of the most hotly contested issues regards whether the common oil and gas recovery technique of \u201cfracing\u201d contaminates nearby water sources.\u00a0 Trying to balance the interests between those citizens opposing the arrival of the oil and gas industry in the state and the desires of the industry itself is similar to mixing oil and water.\u00a0 The Pennsylvania state government recently attempted such a task through enacting the new Pennsylvania Oil and Gas Act, commonly referred to as Act 13<\/a>.<\/p>\n

Rather than pacifying public concern over water contamination and land use, Act 13 compounded them. Shortly after its enactment, a facial constitutional challenge was brought against portions of Act 13. Two provisions drawing much ire amongst Pennsylvania residents and local governments include state preemption of local zoning ordinances for oil and gas operations and an operator\u2019s ability to drill within close proximity to existing waters of Pennsylvania.<\/p>\n

<\/p>\n

State preemption requires all local ordinances to amend their zoning codes to comply with Act 13\u2019s permissive location requirements for oil and gas operations.\u00a0 Among other requirements, Act 13 permits certain oil and gas activities to be conducted on all previously established land uses, including residential and commercial uses.\u00a0 Setbacks for oil and gas activities under Act 13 mandate a distance of 500ft from existing buildings in previously forbidden residential zones.<\/p>\n

The Pennsylvania Department of Environmental Protection (\u201cDEP\u201d), the agency in charge of administering Act 13, was instructed pursuant to \u00a7 3215(b)(4) to waive any distance setback requirements related to existing waters of the state provided the operator of the proposed oil and gas facility outlines additional protective measures.\u00a0 Already fear-stricken about what \u201cfracing\u201d may do to the surrounding waters, Pennsylvania residents and local governments alike were troubled by potential water contamination due to this provision of Act 13.<\/p>\n

During the first round of litigation beginning in July 2012, the Commonwealth Court determined both Act 13 requirements explained above were unconstitutional by a 4-3 vote<\/a>.\u00a0 \u00a0The zoning requirements were struck as an unconstitutional violation of substantive due process. The waiving of setbacks from existing water supplies was also struck as an unconstitutional delegation of legislative powers.\u00a0 Many other issues were challenged by the municipalities, but were decided in favor of the state.\u00a0 After the state filed for appeal, many interested parties anxiously await the upcoming Pennsylvania Supreme Court\u2019s decision.<\/p>\n

In a packed courthouse, the Pennsylvania Supreme Court began addressing Act 13\u2019s constitutionality on Wednesday, October 17th, 2012.\u00a0 Upon arrival to view the oral arguments, it was clear that Act 13 challengers had a home field advantage, shown through the gathering and support of several agitated Pennsylvania residents. \u00a0While waiting in the long line outside of the court chambers, the sign-wielding residents demonstrated their angst with Act 13 and the ability to allow oil and gas operations in residential zones. Such ability to drill in residential zones, as the residents claimed, infringed upon their rights as property owners and their right to clean water. \u00a0Although signs were required to be left outside before entrance was admitted, the residents\u2019 fervor made its way into the packed court\u2019s chambers. \u00a0Many seemed to be hoping for answers to horror stories they heard or read about regarding oil and gas operations leading to contamination of nearby water supplies. Throughout oral arguments, residents were a sideshow of sorts, as they often cheered or voiced disapproval depending upon which attorney was pleading to the court.<\/p>\n

Representing the Commonwealth, attorney Matthew Haverstick\u2019s argument relied on the premise that municipalities are creations of the state and the state may supersede any power it previously has granted the municipalities.\u00a0 Under the state\u2019s line of reasoning, the state previously granted municipalities the right to exclude the oil and gas operations from zones used for residential uses, but it may strip that right and permit oil and gas operations in any zone. \u00a0Mr. Haverstick argued that the Commonwealth Court\u2019s Dissenting Opinion was correct in its assertion that the state may exercise its police powers, so as long as it is not unreasonable or arbitrary.<\/p>\n

Mr. Haverstick explained that the Commonwealth Court incorrectly decided the issue by failing to read Act 13 as a whole in regards to the issue of waiving water setback requirements.\u00a0 His argument claimed that Act 13 supplied appropriate standards to the DEP to guide and restrain the DEP when deciding if a waiver setback is permissible.\u00a0 He emphasized that the language found in Act 13 is nearly identical \u2013 only differing with the substitution of \u201cmay waive\u201d with \u201cshall waive\u201d \u2013 to the prior 1984 Act, which was never deemed as a violation of the non-delegation doctrine.\u00a0\u00a0\u00a0\u00a0 He argued that such a small change would not affect long standing policies regarding waiving distance requirements in relation to existing waters.<\/p>\n

Attorney John Smith, the solicitor for Cecil and Robinson Townships, argued on behalf of the municipalities regarding the constitutionality of Act 13.\u00a0\u00a0 Mr. Smith\u2019s argument mimicked the Commonwealth Court\u2019s ruling that Act 13 unconstitutionally supersedes the zoning powers of municipalities as zoning is an intrinsically local task to determine the best interests of the local community while protecting the health, safety, and general welfare.\u00a0 Smith explained how the inherent goal of zoning, is a means to separate incompatible uses and create orderly establishment confining certain land uses to certain designated areas.\u00a0 Mr. Smith further asserted that zoning is a police power of the state or local government, only appropriately used to promote the public health, safety, and welfare. Yet, he averred that Act 13 was enacted to benefit solely the oil and gas industry rather than promote those public purposes.<\/p>\n

Mr. Smith claimed that the change in language from \u201cmay\u201d to \u201cshall\u201d mandated that DEP waive the setback requirements upon any submission of a plan to protect the nearby waters.\u00a0 Such forced waiver, according to Mr. Smith, would force the DEP to grant a waiver without guidance as to what to look for in the submitted plans, thereby violating the non-delegation doctrine.<\/p>\n

After viewing the oral arguments, it is my belief that the Supreme Court will uphold the Commonwealth Court\u2019s ruling.\u00a0 The local government\u2019s right to zone trumps the state\u2019s right to supersede any municipality it created. The Court must uphold the municipality\u2019s right to zone because taking away such right is a clear substantive due process violation.\u00a0 The Supreme Court must also uphold the Commonwealth Court\u2019s ruling regarding the waiver of distance requirements.\u00a0 As it is a facial challenge, the change \u201cmay\u201d to \u201cshall\u201d implies the DEP is permitted to make its own policy decisions without proper guidance from the legislature.\u00a0 The Supreme Court should further the Commonwealth Court\u2019s suggestion that a simple language change can satisfy the non-delegation doctrine.<\/p>\n

Should the Pennsylvania Supreme Court hold these provisions of Act 13 unconstitutional, Pennsylvania residents and environmentalists will have a temporary victory. \u00a0However, a rendered decision to end all battles between these two adversaries should not be anticipated.\u00a0 For now, the conflicting interests in oil and gas related disputes will likely continue to mix as well as oil and water.<\/p>\n","protected":false},"excerpt":{"rendered":"

There\u2019s no doubt that the oil and gas industry has brought Pennsylvania wealth and created more jobs. \u00a0However, oil and gas drilling also brings with it environmental concerns.\u00a0 One of the most hotly contested issues regards whether the common oil and gas recovery technique of \u201cfracing\u201d contaminates nearby water sources.\u00a0 [\u2026] <\/p>\n

<\/div>\n

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