This post was originally authored by Charles M. Hart, Partner, Duane Morris
In the summer of 2012, after the Pennsylvania Commonwealth Court enjoined implementation of certain provisions of Act 13 that were designed to bring uniformity to zoning in the Marcellus region, we blogged about the resulting uncertainty for the Commonwealth, its citizens, and the natural gas industry. The Pennsylvania Supreme Court has now addressed that uncertainty in a fractured decision that affirms the 2012 ruling, effectively blocking the General Assembly’s attempt to create statewide zoning predictability.
With only six justices now serving, the Supreme Court rendered a 4-2 judgment in Robinson Township v. Commonwealth, holding the uniform zoning provisions of Act 13 unconstitutional, although the four justice majority failed to adopt a single rationale. Three justices, led by Chief Justice Castille, concluded that the statewide zoning provision violated the Environmental Rights section of the Pennsylvania Constitution (a ground that had been rejected by the Commonwealth Court).
One justice would have upheld the Commonwealth Court on substantive due process grounds alone. The Supreme Court also vacated parts of the lower court’s ruling that dismissed, among other things, a claim that Act 13 unconstitutionally singles out the oil and gas industry and a claim that the Act permits unconstitutional government taking of property. The Supreme Court mandated that the Commonwealth Court revisit those arguments and we will continue to follow the case in the Commonwealth Court.
In sum, the affirmance of the Commonwealth Court places local government in charge of implementing local zoning ordinances with respect to oil and gas operations, in lieu of the statewide uniform zoning law envisioned by Act 13.
While numerous commentators suggest that the Supreme Court’s ruling in Robinson Township will be a serious blow to future development of the Marcellus region, that is not necessarily a foregone conclusion. With majority, plurality, concurring, and dissenting opinions running to more than 200 pages, it is impossible to predict the full effect of the Supreme Court’s decision at this juncture. While it is certainly reasonable to believe that local zoning will complicate development of new wells, there is little reason to think that every local governmental entity in the Commonwealth will shun the natural gas industry and the economic benefits that it brings.