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Marcellus Shale in Pennsylvania: Legal Challenges to ACT 13 (Part IV)

Legal Challenges to ACT 13

As anticipated, ACT 13 was met with immediate and severe uproar from landowners and municipalities who sought to limit and control natural gas drilling and production within their jurisdiction. Dozens of municipal governments went to the courts soon after ACT 13 was implemented on April 16, 2012. The leading case challenging the constitutionality of the broad use of legislative power is Robinson Township v. Commonwealth of Pennsylvania. In Robinson Township the petitioners, several municipalities and other entities and individuals, filed a 12-count petition for review alleging that ACT 13 is unconstitutional. The Counts are summarized as follows. ACT 13:

  1. Is an improper exercise of police power;
  2. Is an unconstitutional use of zoning districts;
  3. Violates zoning power granted by MPC ;
  4. Is a "special law" enacted solely to benefit oil and gas industry;
  5. Is an unconstitutional taking of property and improper exercise of eminent domain;
  6. Denies municipalities ability to protect natural resources;
  7. Violates separation of powers by infringing on judicial branch;
  8. Unconstitutional delegates power to DEP without definitive standards;
  9. Is Unconstitutionally vague regarding setback requirements;
  10. Is unconstitutionally vague in defining permit guidelines;
  11. Is a "special law" which deprives medical experts from revealing proprietary information regarding fracing fluid; and
  12. "bill" is unlawful since it has more than one subject since it covered parts of medical field and oil and gas industry

The Commonwealth filed preliminary objections to petitioners standing, argued the challenge was a nonjusticiable political question, and stated that several of the counts failed to state a claim for which relief could be granted.

The Commonwealth Court found that all of the municipalities had standing to challenge the constitutionality of ACT 13. The Court also held that the question of whether ACT 13 was unconstitutional was not a nonjusticiable political question and therefore could rule on the validity of ACT 13.

The Court then tackled the factual issues of the 12-counts alleged by the petitioners. Regarding Counts I,II, and III, the Court stated:

"Because the changes required by 58 Pa.C.S. § 3304 do not serve the police power purpose of the local zoning ordinances, relating to consistent and compatible uses in the enumerated districts of a comprehensive zoning plan, any action by the local municipality required by the provisions of ACT 13 would violate substantive due process as not in furtherance of its zoning police power. Consequently, the Commonwealth's preliminary objections to Counts I, II and III are overruled."

The Court went on to add that ACT 13 "does not protect the interests of neighboring property owners from harm, alters the character of the neighborhood, and makes irrational classifications." Further, the Court declared that "the remaining portions of Chapter 33 that enforce 58 Pa.C.S. § 3304 "are also unconstitutional and null and void.

The only other Count which the Court held was unconstitutional was Count XIII. The Court stated that "because ACT 13 provides insufficient guidance to DEP was to when to grant a waiver from setback requirements established by the Legislature, Section 3215(b)(4) is unconstitutional."

The Commonwealth filed a timely appeal and the Pennsylvania Supreme Court has still not ruled on the matter.

Aftermath of Robinson Township Regarding Zoning

ACT 13 has been stripped of what was its most effective tool in providing uniformity and clarity for landowners, municipalities, and gas companies looking to make a profit. If the PA Supreme Court upholds all of the Commonwealth Court's rulings then local governments and gas companies are again back to the ambiguity that Huntley and Range Resources left us regarding municipalities use of zoning to restrict oil and gas drilling.

Although ACT 13 may not provide the sweeping efficiency and uniformity that gas companies yearned for, the private land owner and municipality are still better protected under the enhanced protections of the act, especially the expansion of the rebuttable presumption and the increase in bonding requirements.

The PA Supreme Court heard oral arguments in the Robinson Township case on October 17, 2012.

No ruling has been made yet. The zoning power of municipal governments and the power of the people to protect themselves from natural gas accidents hangs in the balance.


All sections of the 5-part series are cited in original document titled The Effect of the Natural Gas Boom in Pennsylvania by Dan Mulhern. Written in 2012.