Source: Legal Monitor Worldwide, January 6, 0214
Posted on: http://envfpn.advisen.com
Environmentalists and municipal officials have been celebrating a Pennsylvania state Supreme Court decision striking down key elements of a 2012 law that eliminated local zoning laws in favor of statewide regulations that allowed energy companies to dig gas wells anywhere they wished.
But the court’s Dec. 19 decision invalidating most of Act 13 a signature piece of Gov. Tom Corbett’s jobs and economic policy was no ordinary zoning ruling to settle a run-of-the-mill lawsuit.
The court’s 4-2 majority decision set a landmark constitutional precedent for Pennsylvania.
That precedent which the Corbett administration now wants the court to reconsider could have far-reaching legal, policy and political ramifications beyond where wells and drilling equipment can be located.
A misstep by the state’s legal defense team opened the door for the Supreme Court to set the precedent, which was based on a literal reading of the Pennsylvania Constitution’s guarantee that citizens have a right to natural resources, court records show.
Writing for the majority, Chief Justice Ron Castille said Commonwealth Court was correct when it ruled the state could not supersede local zoning laws related to natural gas drilling. But Castille also said Commonwealth Court was wrong to reject a claim by the plaintiffs that Act 13 violated the state Constitution’s Vietnam-era amendment guaranteeing Pennsylvanians the right “to clean air, pure water, and to the preservation of the natural, scenic, historic and aesthetic values of the environment.”
The amendment (Article 1 Section 27) says the commonwealth must guarantee people’s environmental rights, Castille wrote. So the governor and Legislature did not have the right to adopt statewide regulations that abolished local drilling-related zoning laws municipalities had created to ensure all property owners can leisurely and financially enjoy their land, Castile wrote.
“The type of constitutional challenge presented today is as unprecedented in Pennsylvania as is the legislation that engendered it,” Castille wrote. “The Commonwealth’s efforts to minimize the import of this litigation by suggesting it is simply a dispute over public policy voiced by a disappointed minority requires a blindness to the reality here and to Pennsylvania history, including Pennsylvania constitutional history; and, the position ignores the reality that Act 13 has the potential to affect the reserved rights of every citizen of this Commonwealth now, and in the future.”
That decision has been criticized as too liberal, Duquesne University law professor Bruce Ledewitz said. But the ruling, issued by Republican Castille and three Democratic justices, was the type of literal constitutional interpretation advanced by conservatives like U.S. Supreme Court Justice Antonin Scalia, Ledewitz said.
“It was a Scalia original,” said Ledewitz, a constitutional scholar. “Castille made the claim the people who wrote and adopted this amendment really meant what they said.”
That literal interpretation could affect other aspects of environmental law, Ledewitz said, making passage more difficult for one such bill to loosen the state’s decades-old endangered species laws as energy companies and developers want. The decision also could open the state to legal claims it is not doing enough to limit industrial greenhouse gas emissions, he said.
Last week, the Corbett administration asked the court to reconsider its ruling. In a news release, the administration’s top lawyer said the high court had overstepped its authority.
“In announcing a never-before-employed balancing test against which the constitutional validity of the law is to be judged, the Pennsylvania Supreme Court made its own sweeping factual findings regarding the impact of Act 13, none of which finds any support in the sparse and uneven factual record that was made before Commonwealth Court,” Corbett’s General Counsel James D. Schultz said in a statement.
The court’s decision did not strike down the entire law for now. It kept intact the impact fee industry pays the state for extracting gas. It also left in the mandate industry disclose the chemicals it uses in the “fracking” process as it bores through deep underground rock to reach gas deposits. But those issues could be decided by Commonwealth Court, which the Supreme Court tasked with determining if the remaining portions of Act 13 were valid if the law’s overriding zoning provisions are not.
In its legal brief, the administration asked the Supreme Court to also allow Commonwealth Court to take more testimony to determine the environmental rights issue, too. The administration claims it was never given the chance to refute environmental rights claims in Commonwealth Court.
John C. Dernbach, a Widener University law professor and environmental law expert, said the administration appears to be basing its reconsideration request on statements the court made in explaining its decision. The administration’s reconsideration request has merit, he said, only if those statements are based on judges’ opinion or omission, and not from direct testimony or evidence.
The majority opinion cited testimony from industry officials who touted the economic benefits of drilling for the state and nation. The opinion also cited testimony from a municipal official’s tales of explosions, truck crashes and road damage related to drilling, and of a homeowner whose well water was contaminated with drilling byproducts.
The Commonwealth Court record also was replete with environmental and scientific studies submitted by both sides, said Jordan Yeager, solicitor for plaintiff Nockamixon Township, Bucks County. The administration is just angry the Supreme Court put more stock in the plaintiffs’ evidence, he said.
“They are asking for a second bite of the apple,” Yeager said.
The administration’s reconsideration request is as much a legal issue as it is an environmental issue, said Joshua Maus, spokesman for the office of general counsel. The court’s decision invalidating Act 13 also threw out regulations that forbid drilling within 100 feet or 300 feet of waterways, he said.
“The court, whether intentionally or unintentional, set aside environmental protections championed by Gov. Corbett and the General Assembly,” Maus said.
But the setback provisions were weak at best, said Jonathan Kamin, solicitor for the lead plaintiff, Robinson Township, Washington County. The law allowed the state Department of Environmental Protection to waive the setbacks if a gas company requested it, he said.
As a strong proponent of the gas industry, Corbett has no choice but to fight the court ruling by asking for the reconsideration, said G. Terry Madonna, a Franklin & Marshall College pollster and political scientist. The court ruling was a stinging defeat to Corbett, he said.
“Why would people not expect Corbett to fight back?” Madonna asked.
But Corbett may not have had to pick up the constitutional fight had the state’s legal team not made what at least one legal scholar sees as a strategic error.
The court record shows the plaintiffs had intertwined their legal zoning arguments with the environmental rights claims established by the 1971 constitutional amendment. When the administration appealed Commonwealth Court’s zoning decision to the Supreme Court, the plaintiffs filed their own appeal asking the Supreme Court to reconsider the constitutional claims Commonwealth Court had rejected.
The defense team, represented by state and private lawyers for the administration, DEP and state attorney general’s office, could have asked the Supreme Court to reject the plaintiffs’ constitutional appeal. It didn’t.
“There is no claim of waiver by the Commonwealth,” Castille wrote. ” In our review, we are not constrained by the Commonwealth Court’s reasoning and may affirm on any grounds, as long as the record supports the judgment.”
By not fighting the plaintiffs’ appeal, the administration cannot claim they were not given a chance to argue against the constitutional amendment, Ledewitz said. That omission should doom the administration’s reconsideration request, he said.
“It was their job and it’s silly for them to say they were blindsided,” Ledewitz said. “They have no one to blame but themselves.”