PennFuture continues to fight irresponsible oil and gas development in Pennsylvania

On Monday, our attorneys filed a brief requesting that the Commonwealth Court uphold a lower court ruling, which would keep an unconventional shale gas well pad out of a residential community in Lycoming County. The Township had issued a conditional use permit that would have allowed the company to put this industrial development in a neighborhood zoned Residential Agricultural. Representing residents of the neighborhood before Common Pleas Court, PennFuture successfully convinced the court to reject the Township’s decision last September. The company and Township appealed that ruling to Commonwealth Court.

As this case moves through the legal system, it represents another opportunity for courts to weigh in on zoning rights, as they pertain to unconventional natural gas drilling, since the Supreme Court’s landmark 2012 decision in Robinson Township v. the Commonwealth of Pennsylvania. In Robinson Township, the Supreme Court struck down the legislature’s attempt to override the right of municipalities to designate where these uses could occur, and it did so on the basis that municipalities not only had a right, but a duty to protect citizen's rights under Article I, Sections 1 and 27 of the Pennsylvania Constitution. Article I, Section 1 protects citizens substantive due process rights and Article 1, Section 27 protects the right of the people “to clean air, pure water, and to the preservation of natural, scenic, historic and esthetic values of the environment.”

As unconventional gas drilling expands in Pennsylvania, the question of where and how it should take place continues to be debated. Evidence of unhealthy pollution from increased truck traffic and diesel generators as well as safety concerns have many residents looking to keep drilling at a safe distance from homes, schools and ecologically sensitive areas. As drillers single-mindedly seek profits, it is essential that residents have the ability to protect their health and quality of life in their communities, and zoning is a key part of that process.

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

Permit applications for shale gas wells within one mile of a Washington County school: Withdrawn.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

PennFuture scores big victory for local governments and citizens rights

On Friday, Judge Marc F. Lovecchio of the Court of Common Pleas of Lycoming County decided in favor of local residents by vacating and setting aside a conditional use permit that would have allowed Inflection Energy, LLC to build and operate an unconventional shale gas pad in the middle of a residential neighborhood in Fairfield Township. The case is believed to be the first decision testing the role of local government to regulate natural gas developments in the post-Robinson Township world. 

For the uninitiated, the Supreme Court in Robinson Township relied on Pennsylvania’s Environmental Rights Amendment to strike down portions of the state's Oil and Gas Law (Act 13), which compelled local government to allow gas operations across all zoning districts, including residential districts.  Otherwise, the state threatened to penalize local governments by withholding any "impact fees" intended to address harm caused to local communities by the industry. I know, nice guys.

In this case, Inflection applied for a conditional use permit for its proposed gas well pad.  A number of residents spoke out against the well pad before the Fairfield Township Board of Supervisors, testifying to concerns about air pollution, noise pollution, light pollution, traffic congestion, and the impact of the operations on their property values and general well-being. The company introduced the testimony of two witnesses, neither of whom were experts in land-use matters. Often, their testimony consisted of nothing but conclusions, such as that the operations were compatible with existing uses authorized for residential districts, without any explanation of how the witness reached those conclusions.

On appeal, PennFuture made three arguments: (1) that the language of the ordinance expressly authorized gas operations in the industrial zoned district, and it was therefore inappropriate to use a conditional use permit to allow it in the residential zoned district; (2) that the township's decision was not supported by substantial evidence on the record; and (3) that the township had violated the residents' substantive due process rights and failed to comply with its obligations under Article I, Section 27 by authorizing the gas well operation in the middle of a residential neighborhood.

The Township and Company argued that the citizens had waived their rights to raise their various challenges, that the Township properly used its conditional use process, that the Township's findings were supported by substantial evidence, and that no constitutional violations were committed.

Even though the Court "saw merit" in PennFuture's first argument, Judge Lovecchio rejected the idea that the ordinance expressly allowed gas operations only in industrial districts. Instead, the Court vacated the conditional use permit on the basis that the Township's findings were not supported by substantial evidence. The Court stated that the company failed to provide the Township with any evidence to support the conclusion that the proposed use was similar and compatible, while the citizens had “presented substantial evidence that there is a high degree of probability that the use will adversely affect the health, welfare and safety of the neighborhood."

Deciding the case on the basis of substantial evidence relieved the Court of the need to address PennFuture's constitutional arguments. Nonetheless, the Court made plain that the Township had an obligation to protect the constitutional rights guaranteed to its citizens under Article I, Section 27 of the Pennsylvania Constitution. The rights of citizens to a healthy environment, the Court said, "cannot be ignored and must be protected.” 

In so ruling, the Court adopted both the rationale and express language of the Supreme Court's decision in Robinson Township.

The case is Gorsline et al. v. the Board of Supervisors of Fairfield Township and Inflection Energy, LLC et al.  The full opinion can be found here.

George Jugovic, Jr. is chief counsel for PennFuture and is based in Pittsburgh.

PA's Environmental Rights Amendment: A Note of Thanks

"Go to the source" is a cardinal rule for reporters, investigators, and researchers of all stripes. For lawyers, it sometimes involves the laborious process of digging up a law's "legislative history" — events occurring during the process of enacting the law that might inform the search for its meaning.

It is a pleasant surprise when someone else does that hard legwork and brings the sources to you.

Such room service recently was delivered by the Widener University School of Law's Environmental Law Center in the form of "A Legislative History of Article 1, Section 27 of the Constitution of the Commonwealth of Pennsylvania." Article 1, Section 27 is better known as the "Environmental Rights Amendment."

The Legislative History was compiled by Distinguished Professor of Law John C. Dernbach and Reference and Government Documents Librarian Edmund J. Sonnenberg. The two did the hard work of tracking down all of the primary source documents, from the first House Bill to the proclamation signed by Governor Shapp confirming that the amendment had become part of the Pennsylvania Constitution on May 18, 1971.

In between are excerpts from the House and Senate Legislative Journals tracking the progress of the amendment through two legislative sessions, the text of the ballot question presenting the amendment to the public for adoption, and the tallies of the popular vote on that question and four others appearing on the same ballot.

Perhaps of greatest interest, however, are Professor Robert Broughton's legal analysis of the proposed amendment, which was entered into the House Legislative Journal in 1970, and the set of questions and answers distributed to the public during the run-up to the 1971 public referendum by the primary sponsor of the amendment, then Representative (and later Senator) Franklin L. Kury.

Even if you have no special interest in constitutional or environmental law, the compilation offers a fascinating glimpse into a piece of Pennsylvania history, as well as a lesson in bi-partisanship.

As Dernbach and Sonnenberg note, interest in Article 1, Section 27 among attorneys and the public skyrocketed last year with Pennsylvania Supreme Court's decision in the Robinson Township case. In explaining the meaning and effect of the amendment, Chief Justice Castille's plurality opinion in Robinson Township relied on several of the documents found in the Widener compilation. As current and future cases explore the contours of the Environmental Rights Amendment, attorneys and judges alike will benefit from having these sources conveniently assembled in one place.

We are certain that we are not alone in saying thank you, Professor Dernbach and Mr. Sonnenberg.

But our greatest thanks go to the original source — Senator Kury. The "Legislative History of Article 1, Section 27" is a reminder of his remarkable efforts, without which there would be no Environmental Rights Amendment to discuss.

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.

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.

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.