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Commonwealth Court rules on amendments limiting
municipal zoning authority.
On July 26, the Commonwealth Court of Pennsylvania held that
2012 amendments to Pennsylvania's Oil and Gas Act (Act 13) that
preempt local zoning ordinances conflicting with the act are
unconstitutional. The amendments were part of a comprehensive
legislative package that revised requirements relating to oil and
gas drilling and associated operations and that imposed impact fees
on wells drilled in the Marcellus Shale and other unconventional
formations.
Background
In Robinson Township v. Commonwealth, No. 284 M.D. 2012 (Pa.
Commw. Ct. July 26, 2012), available online
here, seven municipalities (collectively, Petitioners) filed a
petition for review challenging the constitutionality of amendments
to the Oil and Gas Act. Act 13 added section 3304, which required
municipalities to adopt uniform local zoning ordinances that allow
for the development of oil and gas resources in all zoning
districts.
The Petitioners claimed that section 3304 prevents them from
fulfilling their constitutional obligations to protect the health
and safety of their citizens, as well as public natural resources,
from the impacts of oil and gas drilling. The Commonwealth of
Pennsylvania and the Pennsylvania Public Utility Commission
countered that the Petitioners lack standing to bring the suit and
have no constitutional right to enact zoning ordinances, and that
Pennsylvania property owners have a right to allow oil and gas
drilling.
Commonwealth Court's Decision
In a 4-3 majority opinion, the Commonwealth Court held that
"58 Pa. C.S. § 3304 violates substantive due process
because it does not protect the interests of neighboring property
owners from harm, alters the character of neighborhoods and makes
irrational classifications . . . ." Robinson Twp., slip op. at
33.
The majority found section 3304 "irrational" because
it requires municipalities to allow "drilling operations and
impoundments, gas compressor stations, storage and use of
explosives in all zoning districts, and applies industrial criteria
to restrictions on height of structures, screening and fencing,
lighting and noise." Id.
The majority concluded that because section 3304 mandates
"all oil and gas operations in all zoning districts, including
residential districts, as a matter of law," it is
unconstitutional. The majority declared section 3304 and related
provisions to be null and void and permanently enjoined their
enforcement by the Commonwealth of Pennsylvania. Id. at 35. Section
3302 of the Oil and Gas Act, which prohibits municipalities from
enacting ordinances regulating those aspects of oil and gas
operations subject to statewide environmental laws, is not affected
by the decision.
Implications
The Commonwealth Court's majority opinion will not be the
last word on whether the amendments to Pennsylvania's Oil and
Gas Act limiting municipal zoning authority are unconstitutional,
as the decision already has been appealed to the Pennsylvania
Supreme Court by the Pennsylvania Public Utility Commission and the
Pennsylvania Attorney General. Robinson Township nonetheless stands
as a stark reminder that regulation of natural gas drilling in the
Marcellus Shale region is a rapidly evolving and unsettled area of
law that will unquestionably have significant ramifications on the
oil and gas industry going forward.
Copyright 2012. Morgan, Lewis & Bockius LLP. All Rights
Reserved.
This article is provided as a general informational service
and it should not be construed as imparting legal advice on any
specific matter.
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