Permit applications for shale gas wells within one mile of a Washington County school: Withdrawn.

In October 2014, citizens from Mt. Pleasant Township in Washington County reached out to PennFuture for assistance. Range Resources had submitted three conditional use permit applications to the township board for consideration. The permits, if approved, would allow Range to develop three new natural gas well pads and accessory facilities, two of which would join an already existing well pad, placing three within one mile of the Fort Cherry K-12 school campus. PennFuture provided legal counsel at four well-attended public hearings and was preparing testimony for several more when Range abruptly pulled the applications on Tuesday, February 3, citing economic reasons. 

Washington County is a drilling hot spot in Pennsylvania, with wells popping up across all zoned districts, including in county parks, and by homes and schools. Some residents are fed up with this unchecked expansion, which allows gas development anywhere in the township. Several nearby permit violations by Range Resources, along with heavy truck traffic, around-the-clock noise from generators, and bright lights in an otherwise pastoral setting, prompted a group of citizens to ask that the township deny the approvals that would allow these industrial operations in close proximity to homes and schools - and particularly in areas where persons bought homes in reliance on the area being zoned for only residential development.

In addition to quality of life considerations, residents opposed the permits based on concerns related to a growing body of research documenting the health risks associated with the drilling process. Health professionals and parents alike argue that concentrating diesel truck traffic around families and their homes makes no sense. Diesel exhaust is a known carcinogen as well as an air pollutant linked to a variety of respiratory and heart diseases. Studies such as one conducted in 2014 by McKenzie, et al. revealed that pregnant mothers living within ten miles of natural gas wells had higher incidences of congenital heart diseases in their children. Furthermore, the risk of certain birth defects was positively correlated with increased well density. 

As research continues to reveal real risks, citizens are beginning to look to their local governments for appropriate zoning restrictions on natural gas drilling. 

Mt. Pleasant Township modified its land use ordinance to allow natural gas development across all zoned districts prior to enactment of the state natural gas law (Act 13). In the recent Robinson Township case, the Pennsylvania Supreme Court struck down those portions of Act 13 that compelled local municipalities to allow natural gas development across all zoned districts. Mt. Pleasant Township is now in the process of revising its land use ordinance.

In deciding where to permit drilling and where to restrict it, Mt. Pleasant Township faces the same challenge as many municipalities around Pennsylvania: how to strike a balance between shale gas development and protection of the environment and the public’s health and safety. When ruling on components of Act 13 pertaining to local zoning, as set forth in Robinson Township, the Supreme Court made it clear that municipalities cannot allow non-conforming uses in residentially zoned districts – and it goes without saying that shale gas development is not a residential land use.

Valessa Souter-Kline is western Pennsylvania outreach coordinator for PennFuture and is based in Pittsburgh. She tweets @ValessaSK.

Act 13 case: Court sets aggressive schedule, impact fee likely to remain intact

The Pennsylvania Commonwealth Court issued an order last week in Robinson Township v. Commonwealth of Pennsylvania, No. 284 M.D. 2012 (Pa. Commw.), setting briefing and hearing schedules. As we’ve discussed previously on this blog, Robinson Township has been remanded by the Pennsylvania Supreme Court to the Commonwealth Court for further proceedings after the Supreme Court overturned parts of the Commonwealth Court’s original ruling and upheld other portions that invalidated certain provisions of Act 13.

The Commonwealth Court’s order imposes a fairly aggressive schedule on the parties. The Court directs parties to file affirmative briefs supporting their various requests for pre-trial relief by April 1, 2014. Each side will then have the opportunity to respond in writing to the other side’s submission by April 21, 2014. The parties will then appear in court to present their arguments before an “en banc” panel of seven Commonwealth Court judges on May 14, 2014. 210 Pa. Code 3103(a)(2).

During this round of briefing, the parties will address: • Whether the portion of Act 13 regarding which parties are entitled to receive notice of a spill constitutes a “special law” or a violation of equal protection. • Whether portions of Act 13 related to the jurisdiction of the Public Utility Commission must be struck down because they are incapable of standing on their own in the absence of other provisions that have been deemed unconstitutional by the Supreme Court. The parties will also resubmit briefing that they previously submitted to the Court about: • Whether Act 13 effects a ‘taking’ by allowing well operators to take private property for use in its operations. • Whether the ‘gag rule’ covering the ability of health care practitioners to communicate about the chemical composition of fluids used in fracking is constitutional.

The media has reported that the parties and Court have agreed to limit their consideration of severability to several discrete provisions of the law. That suggests that other sections of Act 13 (including the impact fee) not directly implicated in the Robinson Twp. case are likely to remain intact.

Mike Helbing is a staff attorney for PennFuture and is based in Philadelphia.

Pennsylvania Supreme Court rejects Application for Reconsideration of Act 13 decision

The Pennsylvania Supreme Court’s December 19, 2013 decision in Robinson Township v. Commonwealth of Pennsylvania declaring portions of Act 13 unconstitutional will remain intact.

Last month, attorneys for the Public Utility Commission (PUC) and the Department of Environmental Protection (DEP) filed an application asking the Supreme Court to reconsider its original decision. (We discussed the opposing positions of the government here and the citizens here.) On Friday, the state Supreme Court summarily denied the DEP and PUC’s application without opinion.

Justice Saylor dissented from the Court’s decision to deny the Application for Reconsideration, stating that the Commonwealth parties were entitled to “a reasonable opportunity to present evidence” on whether Act 13 satisfied the "newly minted balancing test" announced by Chief Justice Catille under Article I, Section 27 of the Pennsylvania Constitution.

The Supreme Court’s denial clears the last remaining obstacle for the case to return to the Commonwealth Court for further proceedings.

Michael Helbing is staff attorney for PennFuture, based in Philadelphia.

It ain't over till it's over: Recent development in the Act 13 Case.

A few weeks ago, we discussed a filing by the Department of Environmental Protection (DEP) and Public Utility Commission (PUC) in the Act 13 case, Robinson Township v. Commonwealth of Pennsylvania. Attorneys for the DEP and the PUC asked the Pennsylvania Supreme Court to reconsider its December 19, 2013 decision striking down portions of Act 13, because they claimed that the Court made improper findings of fact and erroneously determined certain provisions were not severable from the remainder of the statute.

The individuals and municipalities who challenged Act 13 (referred to in the case as "Citizens") filed a response to the state agencies' application, asserting that the agencies failed to present the required compelling reasons in support of their request for the extraordinary remedy of reconsideration. In their brief, the Citizens make several arguments. First, disputing the agencies' claim that the Supreme Court improperly made factual findings, the Citizens argue that the Court properly held various provisions of Act 13 unconstitutional as a matter of law without making any determinations of fact. On this score, the Citizens highlight the agencies’ own prior contentions that this case could be decided as a matter of law, and argue that the Court should not allow the agencies to change their position at this late stage. The Citizens further argue that even if factual findings were necessary to support the Court’s decision, the record was well developed and fully supported any such findings.

On the issue of severability, the Citizens argue that the Court was right to enjoin the implementation of subsections (c) and (e) of Act 13's Section 3215, because they are too closely related to the subsection the Court declared unconstitutional – subsection (b) – to operate on their own. The Citizens point out that halting the implementation of those provisions does not remove DEP’s authority to ensure that the environment is adequately protected.

Finally, the Plaintiffs suggest that by creating uncertainty about the outcome of the case while requiring additional court proceedings, granting reconsideration would conflict with the Court’s interests in the finality of its decisions and the conservation of judicial resources.

No further submissions are allowed, so the ruling on the agencies' application for reconsideration could come at any time. There is no firm deadline for the Court’s decision.

Mike Helbing is a staff attorney for PennFuture, based in Philadelphia.

Corbett administration asks Pennsylvania Supreme Court to reconsider Act 13 decision

On January 2, attorneys representing the Department of Environmental Protection (DEP) and the Public Utility Commission (PUC) asked the Pennsylvania Supreme Court to revisit its December 19, 2013 decision that declared portions of Act 13 unconstitutional. A plurality of three justices based their decision on the "Environmental Rights Amendment" to the Pennsylvania Constitution, finding that several provisions of Pennsylvania’s natural gas drilling law known as Act 13 violated both the environmental rights of citizens and the Commonwealth's obligations as a trustee of public natural resources under the Amendment. A fourth justice voted to invalidate the same provisions of Act 13 as a violation of the constitutional right to due process.

DEP and the PUC claim that the Court made two fundamental errors. First, they argue that the plurality opinion improperly made factual determinations on appeal that are essential to the Court's ruling. Asserting that such factual determinations properly may be made only after the presentation of evidence at trial, they ask the Supreme Court to remand those portions of the case to allow the Commonwealth Court to receive evidence, make factual determinations, and apply the legal principles articulated in the Supreme Court’s decision.

DEP and the PUC also argue that the Supreme Court erred when it ruled that certain provisions of Act 13 concerning protection of public resources, while not invalid in themselves, cannot be applied by DEP because they are inextricable from one of the provisions found unconstitutional, which establishes setbacks from streams and wetlands, and the (unconstitutional) process for obtaining waivers of the setback requirements. The agencies claim that the Court should allow implementation of the public resource provisions to go forward because they are separable from the invalidated setback/waiver provisions.

Under the Rules of Appellate Procedure, answers to the application for reconsideration must be filed within 14 days. Although there is no requirement to file an answer, the municipalities, environmental group, and individuals who brought the case are likely to do so.

Mike Helbing is a staff attorney for PennFuture and is based in Philadelphia.

Act 13 case: More to come.

In its recent decision in Robinson Township v. Pennsylvania, a plurality of the Pennsylvania Supreme Court made some decisive proclamations in declaring certain portions of Act 13 unconstitutional. But the Court’s decision also left a number of significant issues undecided by “remanding” several issues to the Commonwealth Court – i.e., finding that the Commonwealth Court had decided those issues incorrectly and sending them back (with instructions) – for the Commonwealth Court to re-decide.

• One of the most significant issues remanded to the Commonwealth Court involves “severability.” When parts of a statute have been struck down, severability enables the remaining portions of the statute to remain and continue as law. In this case, the question is whether the portions of Act 13 not declared unconstitutional remain valid law in the absence of the unconstitutional sections. Pennsylvania law creates a presumption in favor of severability, but it allows judges to declare an entire statute unconstitutional if the remaining portions of the law “are so essentially and inseparably connected with, and so depend upon, the void provision or application, that it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one” or “are incomplete and are incapable of being executed in accordance with the legislative intent.” 1 Pa.C.S. § 1925. The Supreme Court’s decision in Robinson Township determined that certain otherwise valid provisions of Act 13 – e.g., section 3215(b), which establishes gas well setbacks from streams and wetlands – were not severable from the unconstitutional provisions, and therefore had to be struck down with them. But, it directed the Commonwealth Court to consider more carefully the broader issue of the severability of the rest of Act 13. This could be a difficult issue for the Commonwealth Court, and it is worth following closely. If the Commonwealth Court ultimately decides that the remaining portions of Act 13 are not severable, the entire act would be struck down – even if no further provisions are deemed unconstitutional.

• The Pennsylvania Supreme Court also remanded the claims of Dr. Mehernosh Khan, who challenged the portion of Act 13 that requires physicians treating patients sickened by fracking fluids to sign a confidentiality agreement in order to obtain the chemical composition of those fluids. Contrary to the Commonwealth Court’s initial holding, the state Supreme Court determined that Dr. Khan was an appropriate person to raise the claim (i.e., had “standing”), and instructed the Commonwealth Court to evaluate Dr. Khan’s claim on the merits.

• Finally, the Supreme Court directed the Commonwealth Court to reconsider the plaintiffs’ claims – initially rejected by the Commonwealth Court – that Act 13 is unconstitutional as a “special law” and an unlawful “taking” of private property. Article III, Section 32 of the Pennsylvania Constitution prohibits “special laws” that apply too narrowly to a particular person or group of people and are not generally applicable, and both the Pennsylvania and United States Constitutions prohibit the government from unlawfully taking private property for private uses.

Considering the stakes of this litigation, it is possible (even likely) that the Commonwealth Court’s resolution of some of these issues will be appealed by one or both parties back to the Pennsylvania Supreme Court. Bottom line: this decision is already a landmark case, but stay tuned. There could be even more excitement to follow.

Michael Helbing is a staff attorney in PennFuture's Philadelphia office.

The devil in chapter 78

Last year, Governor Corbett signed into law Act 13 of 2012, the first comprehensive revision of Pennsylvania’s oil and gas law since 1984.

Soon – perhaps as early as Friday – the Pennsylvania Environmental Quality Board (EQB) will seek public comment on the first major revisions of Pennsylvania’s oil and gas well regulations (which are set forth at 25 Pa. Code Chapter 78) since 1989. The revisions run to some 74 pages.

Generally speaking, Pennsylvania environmental law takes two forms: (1) statutes like Act 13, which are passed by the General Assembly and signed into law by the governor; and (2) regulations, which are promulgated by the EQB, a special governmental body whose sole function is to establish regulations for the Department of Environmental Protection (DEP). Though not technically considered laws, terms and conditions set forth in permits issued by DEP constitute a third variety of enforceable standards and restrictions.

Statutes are the broad strokes of the law – detailed in places, but typically rich in ambiguities and gaps, often due to legislative compromise. Regulations “implement” statutes by clarifying ambiguities and filling gaps; they are the tools that state agencies use to give effect to the statutes they administer. Permit terms apply statutes and regulations to particular activities.

The purpose of the upcoming Chapter 78 revisions is twofold: First, to implement Act 13, and second, to codify a number of regulatory approaches that the DEP has so far implemented only through permit terms, such as design and construction standards for centralized wastewater impoundments.

In the coming weeks, this blog will return to parts of the Chapter 78 revisions that merit particular public attention and comment. We all know who skulks in the details.

Act 13 Watch: PUC and DEP File Petition To Get New Justice Involved

As has been reported, the Pennsylvania Public Utility Commission (PUC) and Department of Environmental Protection (DEP) filed a joint petition last week requesting that the Robinson Township case, which challenges the constitutionality of Act 13, be resubmitted to the full Court so that new Justice Correale Stevens may participate in the  decision. 

When oral argument was heard on October 17, 2012, there were only six justices on the bench as former Justice Joan Orie Melvin was suspended while being prosecuted for public corruption charges. She was eventually convicted.

Governor Corbett appointed Correale Stevens to replace Melvin. He was sworn in last Tuesday, and though the Supreme Court has yet to decide the Robinson Township case, it said that Stevens would not participate in the decision unless he heard oral argument. According to StateImpact, a spokeswoman for the Court indicated that it has rarely ordered re-argument, but that another avenue for Stevens to participate might be for the parties to resubmit briefs. Considering that the Supreme Court said that oral argument was an "integral" part of their decision-making process, it is difficult to understand how resubmitting briefs in an already well-briefed case would, by itself, make a difference in whether Justice Stevens should participate in the decision.

To review, the Commonwealth Court in Robinson Township decided that a provision of Act 13, which mandated municipalities to allow industrial activities in areas not zoned for those activities, unconstitutionally harmed those that depended on that zoning to purchase property in the district, in violation of their substantive due process rights under Art. 1, Sec. 1 of the Pa. Constitution. The Commonwealth Court also declared unconstitutional a separate provision granting DEP the right to waive gas well set-back requirements because the legislature provided no guidance for the executive branch agency to exercise that discretion, in violation of Art 1, Sec. 2 of the Pa. Constitution. In effect, the Court said that the legislature did not properly delegate its authority to the DEP.

While on the Superior Court, Justice Stevens issued no opinions on the constitutional provisions relied on by the majority in Robinson Township to strike down portions of Act 13. He did participate in a handful of decisions that raised substantive due process claims, but those cases were criminal cases that shed little light on his views. For example, Commonwealth v. Gaines involved a claim that substantive due process entitled an individual to have his arrest record expunged, and Commonwealth v. Teeter involved an individual's right to be free from vague and discriminatory sentencing statutes. Both principles are well established, but the claims of the individual defendants were rejected in those cases without much analysis.

During his tenure, Justice Stevens has not issued or joined an opinion that reveals his view of how the courts should use substantive due process to protect an individual's right to life, liberty and, in particular, the right to acquire, own and protect property as guaranteed by Art 1, Sec. 1 of the Pa. Constitution.

Pa. Supreme Court watch: Act 13 may still only have six justices voting

We previously did a review of candidates forwarded by Democratic senators for Governor Tom Corbett to consider for appointment to the Pennsylvania Supreme Court.

Corbett appointed Correale Stevens, one of the five nominees forwarded to him by Daylin Leach, Democratic Chair of the Senate Judiciary Committee, and then the President Judge of the Superior Court.

It was thought by some that the Supreme Court was waiting for the seat of convicted Justice Joan Orie Melvin to be filled, before it made a decision on the constitutionality of Act 13.

But last week I was talking to a reporter from Platts, an energy sector news service, and she informed that the Supreme Court told her that Justice Stevens would not participate in any decision in which he had not heard oral argument.

This means that the Supreme Court will either make its decision on Act 13 based on the votes of six justices, or the Court will need to order re-argument if Justice Stevens is to take part in the decision.

In This Case a Tie Does Not Result In a “Push”

In blackjack, typically when the dealer and a player get the same point total the result is a "push," meaning neither side wins.

In Robinson Township, et al. v. Commonwealth of Pennsylvania, 2012 Commonwealth LEXIS 222 (July 26, 2012), the Pennsylvania Commonwealth Court struck down important aspects of Pennsylvania’s new oil and gas law, known colloquially as Act 13. It held that the General Assembly: 1) improperly sought to compel local government to allow industrial gas operations in nearly all zoned -- including residential -- districts, and 2) failed to establish adequate standards for instances when the Department of Environmental Protection (DEP) may waive setback requirements designed to protect streams and other surface waters.

The Corbett administration appealed that decision to the state Supreme Court and is looking for something more than a "push." Here’s why.

The Commonwealth Court is comprised by law of nine "commissioned" judges. One of those nine, Judge Mary Hannah Leavitt, recused herself and therefore did not participate in the decision. By rule, seven judges are impaneled to hear a case en banc, meaning the entire court. Judge Renee Cohn Jubilerer, wife of former president pro tempore of the Senate (R — District 30), was not on the panel of seven. The decision to toss out parts of Act 13 was made by a vote of 4-3, with Democrats in the majority. Internal operating rules of the court provide that any "commissioned" judge not on the panel may file an "objection" to the majority opinion, and if that vote results in a tie of all "commissioned" judges, the opinion has to say so. If one looks at footnote one of the majority opinion, it explains that the opinion was being filed under a specific rule "because ... the vote of the remaining commissioned judges on those Counts resulted in a tie." So, the majority that struck down portions of Act 13 had the votes to do so because of the judges who were impaneled for this particular en banc hearing. The actual vote of "commissioned" judges was 4-4.

The Pennsylvania Supreme Court, on the other hand, is made up of seven justices. One of those seven, Justice Joan Orie Melvin, is currently suspended from participating on the court because of felony charges alleging that her judicial staff improperly worked on her 2003 and 2009 election bids. (Joan, of course, is the sister of state Sen. Jane Orie, who was convicted of ethics violations, theft of services, and forgery, and was sentenced to prison). That leaves six justices — split evenly between Democrats and Republicans — to hear the Commonwealth's Robinson appeal. Since Justice Orie Melvin’s suspension, the Supremes have split evenly on two different cases. It is not inconceivable that the same could happen in the Robinson appeal. A tie vote in the Supreme Court would mean that the majority vote of the Commonwealth Court would be affirmed.

And that is why the Corbett administration, which crafted and pushed through the overbearing zoning provisions of Act 13, is hoping for something other than a "push" before the Supreme Court. If the Supreme Court votes 3-3, the Corbett administration loses.