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Court Rules Portions of Fracking Law Unconstitutional

Recently, the Pennsylvania Supreme Court handed down a decision that could change the face of environmental and municipal law, especially zoning, in the Commonwealth.

In Robinson v. Pennsylvania, a majority of the Court struck down Act 13, a state law that regulated fracking for natural gas and overrode local zoning regulations. The Court held that the law violated the seldom-used Pennsylvania environmental amendment, which guarantees to the people “a right to clean air, pure water and to the preservation of the natural, scenic historic and aesthetic values of the environment…” This was game-changing, as previous state laws regulating mining, quarrying and farming had withstood challenge even when they overrode local zoning ordinances.

The Court decision seems to open the door to use the environmental amendment to strike down decisions, ordinances and laws at both the state and local levels. It has not been used that way in the past.

In addition, the Court gave little weight to the longstanding Pennsylvania precedent referred to as “Dillon’s case,” which said that since the state created the local governments and even gave them the power to have zoning ordinances, that the state had the right to limit local governments in their exercise of that power.

For municipal solicitors, the case seems to give townships and boroughs rights to challenge state regulatory schemes and to use the environmental amendment as a “sword and not (just) a shield.” It also casts some doubt on the reasoning embodied in Dillon’s case.

Of course, the decision itself was a 4-3 majority and only three of the Justices agreed with the “majority” reasoning that the state’s Act 13 scheme violated the environmental amendment. Thus, the Supreme Court has cut a new path, but it’s not a clear one.

 

Catherine M. (Kate) Harper has been a partner at Timoney Knox since 1997. Ms. Harper is also a member of the Pennsylvania General Assembly in the House of Representatives, representing eastern MontgomeryCounty. She has a general practice, but focuses on land use (particularly municipal and zoning law), real estate and civil litigation in Bucks and Montgomery Counties.

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