On December 19, the Pennsylvania Supreme Court issued its long-awaited ruling in Robinson Township v. Commonwealth of Pennsylvania, more commonly known as “the Act 13 case”. The 162-page opinion is already being described by legal scholars and the media as one of the most important cases in Pennsylvania history.
So what does it really mean?
The Supreme Court declared portions of Act 13, Tom Corbett’s controversial Marcellus Shale law passed in 2012, to be in violation of the Pennsylvania Constitution. As a result, those sections of the law are null and void.
Most importantly, local control has been restored to municipalities to regulate certain aspects of oil and gas development. Act 13 had effectively eliminated the rights of municipalities to pass zoning ordinances relating to drilling and tried to replace them with statewide standards that provided very little protection. Remember, Act 13 was largely written by lobbyists for the natural gas industry, so it was geared towards making it easier for them to operate.
To make sure everyone is on the same page, here are a few critical details about what the Court ruling means.
First, a municipality cannot ban drilling. There are limitations as to what zoning ordinances can do; they’re mainly about setting the location and conditions under which drilling can take place. With the ability of horizontal drilling to extend for two miles in any direction underground, you can stay more than 300 feet – the ridiculously low setbacks under Act 13 – from a school, daycare, hospital or senior center and still drill just about anywhere you want.
Zoning is important but often misunderstood. Much like a municipality wanting the ability to decide whether or not a strip club belongs in a residential neighborhood, the municipalities that challenged Act 13 simply wanted the ability to make those same choices when it comes to gas drilling. It’s about protecting the existing residents from unreasonable activity that would impact the use, enjoyment and value of the people who already live in a specific area.
Second, you probably won’t see much of a change when it comes to the way drilling permits are handled in your community. The municipalities who challenged Act 13 didn’t want to necessarily impose a bunch of new restrictions; they just wanted to make sure the really bad parts of Act 13 that took away their right to pass local ordinances never became law.
Because the legal challenge happened before Act 13 went into effect, the courts said that municipalities could keep their zoning ordinances until the Supreme Court made a final decision. As a result, the process of getting a drilling permit now will be basically the same as it was before the Act 13 decision. And for those who say the decision will mean there can be no drilling, remember that nearly 12,000 horizontal wells have already been permitted in Pennsylvania under the same local zoning system we will have now that Act 13 has been declared unconstitutional. Despite what Tom Corbett and the drilling industry may claim to get leaseholders riled up, the sky is most definitely not falling.
Third, the Impact Fee is still in place. Parts of the law were sent back to the Commonwealth Court for further analysis, but the Supreme Court was clear that the Impact Fee was not one of the unconstitutional parts of the law. There is still strong public support for a true severance tax (which could have offset the recent gasoline tax increase for example), but there is clearly no support from Tom Corbett and legislative leaders who are counting on big campaign checks from the natural gas industry in the upcoming election year.
Fourth, the decision has far-reaching implications. The Supreme Court based their ruling on Article I, Section 27 of thePennsylvania Constitution, which guarantees citizens the right to clean air and clean water. This is much more expansive than most people expected, and it puts the Legislature on notice that a law can be overturned for violating the Constitutional environmental protections guaranteed to Pennsylvanians if they overreach like they tried to do with Act 13.
Finally, this was a fight worth winning. I led the fight against Act 13 in the Legislature and I strongly supported the communities in my district that led the legal fight to have it overturned in the courts. The issue is much larger than one drilling company or one town; it’s about defining the landscape and quality of life for everyone living in our region for decades to come.
The Marcellus Shale has put us on the world map. Just last week,China Shenhua Energy Co., China’s state-owned coal company, announced a $146 million project to drill natural gas wells in Greene County. We already know what little regard the Chinese government has for the health and well being of its own citizens, much less the people of Pennsylvania. Had Act 13 become law, a foreign nation would essentially have more say over what happens in your town than your local elected officials. I don’t know about you, but I’m not ready to live in a state where that’s okay.
For all these reasons and many more, the Act 13 decision was a huge victory for the people in the region and I am honored to have been part of the fight. I took a lot of hits, both political and personal, from those who wanted to see our efforts fail, but sometimes the battle is worth the scars. Now we can get back to letting communities have a voice in their own destiny instead of a big-government takeover from Tom Corbett and his friends in the natural gas industry. When it comes to regulating drilling activity, a smaller government approach can yield big-time results.