Robinson Twp. v. Commonwealth, 284 M.D. 2012
| Decision Date | 26 July 2012 |
| Docket Number | No. 284 M.D. 2012,284 M.D. 2012 |
| Parties | Robinson Township, Washington County, Pennsylvania, Brian Coppola, Individually and in His Official Capacity as Supervisor of Robinson Township, Township of Nockamixon, Bucks County, Pennsylvania, Township of South Fayette, Allegheny County, Pennsylvania, Peters Township, Washington County, Pennsylvania, David M. Ball, Individually and in His Official Capacity as Councilman of Peters Township, Township of Cecil, Washington County, Pennsylvania, Mount Pleasant Township, Washington County, Pennsylvania, Borough of Yardley, Bucks County, Pennsylvania, Delaware Riverkeeper Network, Maya Van Rossum, The Delaware Riverkeeper, Mehernosh Khan, M.D., Petitioners, v. Commonwealth of Pennsylvania, Pennsylvania Public Utility Commission, Robert F. Powelson, in His Official Capacity as Chairman of the Public Utility Commission, Office of the Attorney General of Pennsylvania, Linda L. Kelly, in Her Official Capacity as Attorney General of the Commonwealth of Pennsylvania, Pennsylvania Department of Environmental Protection and Michael L. Krancer, in His Official Capacity as Secretary of the Department of Environmental Protection, Respondents |
| Court | Pennsylvania Commonwealth Court |
Robinson Township, Washington County, Pennsylvania, Brian Coppola,
Individually and in His Official Capacity as Supervisor of Robinson Township,
Township of Nockamixon, Bucks County, Pennsylvania, Township of South Fayette,
Allegheny County, Pennsylvania, Peters Township, Washington County,
Pennsylvania, David M. Ball, Individually and in His Official Capacity as Councilman
of Peters Township, Township of Cecil, Washington County, Pennsylvania,
Mount Pleasant Township, Washington County, Pennsylvania, Borough of Yardley,
Bucks County, Pennsylvania, Delaware Riverkeeper Network,
Maya Van Rossum, The Delaware Riverkeeper, Mehernosh Khan, M.D., Petitioners,
v.
Commonwealth of Pennsylvania, Pennsylvania Public Utility Commission,
Robert F. Powelson, in His Official Capacity as Chairman of the Public Utility Commission,
Office of the Attorney General of Pennsylvania, Linda L. Kelly, in Her Official Capacity
as Attorney General of the Commonwealth of Pennsylvania, Pennsylvania Department
of Environmental Protection and Michael L. Krancer, in His Official Capacity
as Secretary of the Department of Environmental Protection, Respondents
No. 284 M.D. 2012
COMMONWEALTH COURT OF PENNSYLVANIA
Argued: June 6, 2012
Dated: July 26, 2012
AND NOW, this 31st day of July, 2012, the dissenting opinion filed with this Court dated July 26, 2012, is amended to reflect the following changes to footnote 1 as follows:
In Huntley, the Supreme Court addressed a challenge to a local zoning ordinance that restricted oil and gas extraction in a residential zoning district. The issue before the Court was whether the Oil and Gas Act, Act of December 19, 1984, P.L. 1140, as amended, 58 P.S. §§ 601.101-.605 (repealed 2012) (Former Act), preempted the local ordinance. The Supreme Court held that although the Former Act clearly preempted the field of local regulation in terms of how oil and gas resources are developed in the Commonwealth, it left room for local municipalities, through the MPC, to regulate where those resources are developed: "[A]bsent further legislative guidance, we conclude that the [local o]rdinance serves different purposes from those enumerated in the [Former] Act, and, hence, that its overall restriction on oil and gas wells in R-1 districts is not preempted by that enactment." Huntley, 600 Pa. at 225-26, 964 A.2d at 866 (emphasis added). With Act 13, which repealed the Former Act, the General Assembly has provided the courts with clear legislative guidance on the question of whether Act 13 is intended to preempt the field of how and where oil and gas natural resources are developed in the Commonwealth.
A corrected copy of the opinion and order is attached.
_________________
P. KEVIN BROBSON, Judge
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Robinson Township, Washington County, Pennsylvania, Brian Coppola Individually
and in his Official Capacity as Supervisor of Robinson Township, Township
of Nockamixon. Bucks County, Pennsylvania, Township of South Fayette,
Allegheny County, Pennsylvania, Peters Township, Washington County, Pennsylvania,
David M. Ball Individually and in his Official Capacity as Councilman of Peters Township,
Township of Cecil, Washington County, Pennsylvania, Mount Pleasant Township,
Washington County, Pennsylvania, Borough of Yardley, Bucks County,
Pennsylvania, Delaware Riverkeeper Network, Maya Van Rossum,
the Delaware Riverkeeper, Mehernosh Khan, M.D., Petitioners
v.
Commonwealth of Pennsylvania, Pennsylvania Public Utility Commission,
Robert F. Powelson, in his Official Capacity as Chairman of the Public Utility Commission,
Office of the Attorney General of Pennsylvania, Linda L. Kelly, in her Official Capacity
as Attorney General of the Commonwealth of Pennsylvania, Pennsylvania Department
of Environmental Protection and Michael L. Krancer, in his Official Capacity
as Secretary of the Department of Environmental Protection, Respondents
Page 3
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION BY
PRESIDENT JUDGE PELLEGRINI1
Before this Court are preliminary objections filed by the Commonwealth of Pennsylvania, Pennsylvania Public Utility Commission (Commission), et al.,2 (collectively, the Commonwealth) in response to a petition for review filed by Robinson Township, et al.,3 (collectively, Petitioners)
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challenging the constitutionality of Act 13.4 Also before the Court is Petitioner's motion for summary relief seeking judgment in their favor.5 The Commission and the DEP have filed a cross-motion for summary relief.
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.6 Act 13 repealed Pennsylvania's Oil and Gas Act7 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,8 including environmental laws and zoning code provisions except in
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limited instances regarding setbacks in certain areas involving oil and gas operations. "Oil and gas operations" are defined as:
(1) well location assessment, including seismic operations, well site preparation, construction, drilling, hydraulic fracturing and site restoration associated with an oil or gas well of any depth;
(2) water and other fluid storage or impoundment areas used exclusively for oil and gas operations;
(3) construction, installation, use, maintenance and repair of:
(i) oil and gas pipelines;
(ii) natural gas compressor stations; and
(iii) natural gas processing plants or facilities performing equivalent functions; and
(4) construction, installation, use, maintenance and repair of all equipment directly associated with activities specified in paragraphs (1), (2) and (3), to the extent that:
(i) the equipment is necessarily located at or immediately adjacent to a well site, impoundment area, oil and gas pipeline, natural gas compressor station or natural gas processing plant; and
(ii) the activities are authorized and permitted under the authority of a Federal or Commonwealth agency.
58 Pa. C.S. §3301. Act 13 also gives the power of eminent domain to a corporation that is empowered to transport, sell or store natural gas, see 58 Pa. C.S. §3241, and requires uniformity of local ordinances, 58 Pa. C.S. §3304.
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Petitioners allege that they have close to 150 unconventional9 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.10
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In response to the passage of the Act, Petitioners filed a 12-count petition for review alleging that Act 13 violates:
• Article 1 §1 of the Pennsylvania Constitution and §1 of the 14th Amendment to the U.S. Constitution as an improper exercise of the Commonwealth's police power that is not designed to protect the health, safety, morals and public welfare of the citizens of Pennsylvania; (Count I)
• Article 1 §1 of the Pennsylvania Constitution because it allows for incompatible uses in like zoning districts in derogation of municipalities' comprehensive zoning plans and constitutes an unconstitutional use of zoning districts; (Count II)
• Article 1 §1 of the Pennsylvania Constitution because it is impossible for municipalities to create new or to follow existing comprehensive plans, zoning ordinances or zoning districts that protect the health, safety, morals and welfare of citizens and to provide for orderly development of the community in violation of the MPC[11] resulting in an improper use of its police power; (Count III)
• Article 3 §32 of the Pennsylvania Constitution because Act 13 is a "special law" that treats local
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governments differently and was enacted for the sole and unique benefit of the oil and gas industry; (Count IV)...
• Article 1 §§1 and 10 of the Pennsylvania Constitution because it is an unconstitutional taking for private purposes and an improper exercise of the Commonwealth's eminent domain power; (Count V)
• Article 1 §27 of the Pennsylvania Constitution because it denies municipalities the ability to carry out their constitutional obligation to protect public natural resources; (Count VI)
• the doctrine of Separation of Powers because it entrusts an Executive agency, the Commission, with the power to render opinions regarding the constitutionality of Legislative enactments, infringing on a judicial function; (Count VII)
• Act 13 unconstitutionally delegates power to the Pennsylvania Department of Environmental Protection (DEP) without any definitive standards or authorizing language; (Count VIII)
• Act 13 is unconstitutionally vague because its setback provisions and requirements for municipalities fail to provide the necessary information regarding what actions of a municipality are prohibited; (Count IX)
• Act 13 is unconstitutionally vague because its timing and permitting requirements for
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