The Oil and Gas Addendum
A Review of Robinson Township v. Commonwealth of Pennsylvania
On February 21, 2014, the Supreme Court of Pennsylvania declined to reconsider its landmark decision of December 19, 2013, invalidating several provisions of Act 13 on the grounds that various provisions of the amendments to the Oil and Gas Act, including provisions preempting local zoning restrictions, are an unconstitutional transgression of the obligation to protect environmental rights conferred under Article I, § 27 of the Pennsylvania Constitution. Robinson Township v. Commonwealth of Pennsylvania, 2013 Pa. LEXIS 3068.
Act 13 amended the Oil and Gas Act in several critical respects. Specifically, it preempted local zoning of oil and gas operations and imposed a requirement for statewide uniformity of local zoning ordinances regarding oil and gas operations. Municipalities, an individual, and a citizens group challenged Act 13 as unconstitutional on due process grounds for violating separation of powers, and for violating the Environmental Rights Amendment, Article I, Section 27 of the Pennsylvania Constitution (“ERA”), which provides the people a “right to clean air, pure water, and to the preservation of the natural, scenic, historic and aesthetic values of the environment” and states that “as trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all people.” Id. The Commonwealth argued that Act 13 is constitutional in its entirety and that it had legitimately exercised its police power when implementing the new Act 13 provisions. Commonwealth Court invalidated those provisions on substantive due process grounds, rejecting the Article I, § 27 argument.
A splintered Supreme Court agreed that the central provisions of Act 13 superceding zoning and imposing standard requirements on oil and gas operations were constitutionally infirm. Three Justices determined that those provisions of Act 13 violated the ERA. In a remarkable and unprecedented application of the ERA, the majority opinion found that the ERA grants rights to Pennsylvania’s citizens for clean air and water that limits the state’s power to act contrary to those rights. The majority found that the ERA is self-effectuating and imposes on all branches of the Commonwealth, including municipalities, obligations and rights to protect the environment in their actions. Recognizing that the rights conferred by the ERA are on par with other enumerated rights, such as the right to use and enjoy property, the majority breathed life into the ERA finding that economic development cannot take place at the expense of unreasonable degradation of the environment. The majority also found that the Commonwealth’s function as trustee of the public’s natural resources, such as air, water and wildlife, imposes a fiduciary obligation to refrain from action unreasonably degrading the environment. The majority concluded that it had an obligation to vindicate the rights of Pennsylvania’s citizens made plain under the ERA.
Applying its view of the ERA, the Court held that Section 3303 of Act 13, which attempted to preempt municipalities from regulating the oil and gas industry in any form, violated the ERA by removing from municipalities the obligation imposed by the ERA to protect natural resources and it forced municipalities to undo existing protections of the environment already in place through zoning. “The police power, broad as it may be, does not encompass such authority to so fundamentally disrupt these expectations respecting the environment. ”
As to Section 3304, the majority found it unconstitutional because the requirement that local governments ignore existing zoning classifications and allow oil and gas industrial operations in all zoning districts violated the trustees duty to “maintain” resources of the Commonwealth “for the benefit of all people,” including future generations. Id. at 212. The Commonwealth had argued that citizens would have energy and economic benefits from the extraction of shale gas and that the provision would prevent a patchwork of local zoning ordinances that would inhibit the growth of oil and gas operations. The majority concluded that Section 3304 would harm protected areas with the negative effects of oil and gas operations and would result in disparate impacts on the populace because certain landowners would be unfairly subject to oil and gas operations on their property.
Finally, the majority found that the provision of various setbacks in Section 3215(b) was unconstitutional because it allowed the state to grant waivers for the setbacks without any ability for appeal and without adequate standards to guide the exercise of discretion.
Justice Baer concurred in the result, agreeing with Commonwealth Court that the subject provisions violated substantive due process, and but declined to adopt the majority’s application of the ERA. In dissent, Justice Saylor chastised the majority for embarking upon its own course, not developed below, to reach “broadscale pronouncements” that amounted to social policymaking by the judiciary inconsistent with the great deference given the political branch. He questioned the validity of the majority’s view that municipalities have powers co-extensive with those of the General Assembly which created them. Similarly, Justice Eakin, also in dissent, criticized the majority’s conference on municipalities of the right and obligation to enforce individual constitutional rights and for administering policy rather than assuring constitutional compliance.
Oil and gas development can present unique and complex issues that can be intimidating and challenging. At Houston Harbaugh, P.C., our oil and gas practice is dedicated to protecting the interests of landowners and royalty owners. From new lease negotiations to title disputes to royalty litigation, we can help. Whether you have two acres in Washington County or 5,000 acres in Lycoming County, our dedication and commitment remains the same.
We Represent Landowners in All Aspects of Oil and Gas Law
The oil and gas attorneys at Houston Harbaugh have broad experience in a wide array of oil and gas matters, and they have made it their mission to protect and preserve the landowner’s interests in matters that include:
- New lease negotiations
- Pipeline right-of-way negotiations
- Surface access agreements
- Royalty audits
- Tax and estate planning
- Lease expiration claims
- Curative title litigation
- Water contamination claims
Robert Burnett - Practice Chair
Robert’s practice is exclusively devoted to the representation of landowners and royalty owners in oil and gas matters. Robert is the Chair of the Houston Harbaugh’s Oil & Gas Practice Group and represents landowners and royalty owners in a wide array of oil and gas matters throughout the Commonwealth of Pennsylvania. Robert assists landowners and royalty owners in the negotiation of new oil and gas leases as well as modifications to existing leases. Robert also negotiates surface use agreements and pipeline right-of-way agreements on behalf of landowners. Robert also advises and counsels clients on complex lease development and expiration issues, including the impact and effect of delay rental and shut-in clauses, as well as the implied covenants to develop and market oil and gas. Robert also represents landowners and royalty owners in disputes arising out of the calculation of production royalties and the deduction of post-production costs. Robert also assists landowners with oil and gas title issues and develops strategies to resolve and cure such title deficiencies. Robert also advises clients on the interplay between oil and gas leases and solar leases and assists clients throughout Pennsylvania in negotiating solar leases.
Brendan A. O'Donnell
Brendan O’Donnell is a highly qualified and experienced attorney in the Oil and Gas Law practice. He also practices in our Environmental and Energy Practice. Brendan represents landowners and royalty owners in a wide variety of matters, including litigation and trial work, and in the preparation and negotiation of:
- Pipeline right of way agreements
- Surface use agreements
- Oil, gas and mineral conveyances