United States of America
Injunctive Relief, Standing, Land Use, Constitutional, Taxation, Jurisdiction, Property, Declaratory Relief, Permits, Air pollution
On March 29, 2012, Petitioners filed a petition for review in the nature of a complaint for declaratory judgment and injunctive relief in this Court’s original jurisdiction challenging the constitutionality of Act 13 pertaining to Oil and Gas – Marcellus Shale. Act 13 repealed Pennsylvania’s Oil and Gas Act and replaced it with a codified statutory framework regulating oil and gas operations in the Commonwealth. Among other provisions involving the levying and distribution of impact fees and the regulation of the operation of gas wells, Act 13 preempts local regulation, including environmental laws and zoning code provisions except in limited instances regarding setbacks in certain areas involving oil and gas operations. Act 13 also gives the power of eminent domain to a corporation that is empowered to transport, sell or store natural gas. Petitioners allege that they have close to 150 unconventional Marcellus Shale wells drilled within their borders, and Act 13 prevents them from fulfilling their constitutional and statutory obligations to protect the health, safety and welfare of their citizens, as well as public natural resources from the industrial activity of oil and gas drilling. Petitioners allege that Act 13 requires them to modify many of their zoning laws. A divided Commonwealth Court of Pennsylvania judicial panel struck down the Act 13 provisions that created statewide uniform zoning for purposes of oil and natural gas development in Pennsylvania as unconstitutional by a vote of 4 – 3., the court held that “the Commonwealth is permanently enjoined from enforcing 58 P.S. § 3304 and its provisions,” including any remaining provisions of Act 13 that otherwise enforce § 3304. The court’s rationale was that Act 13’s uniform zoning provisions are unconstitutional, because they “do not serve the police power of local zoning ordinances, relating to consistent and compatible uses in the enumerated districts of a comprehensive zoning plan[.] In the majority opinion’s view, “[b]ecause 58 Pa. C.S. §3304 requires all oil and gas operations in all zoning districts, including residential districts, as a matter of law, [it] violates [constitutional] substantive due process because it allows incompatible uses in zoning districts and does not protect the interests of neighboring property owners from harm, alters the character of the neighborhood, and makes irrational classifications.” Based on this analysis, the court granted the Petitioners’ Motion for Summary Relief, declared 58 Pa C.S. §3304 unconstitutional and null and void, and permanently enjoined the Commonwealth from enforcing it.