Unlimited Implications in a Limited Space: State Preemption in Robinson Township v. Commonwealth

The nationwide explosion of hydraulic fracturing leads most bystanders to contemplate where federal regulations might be expanded to cover accompanying environmental hazards. However, the fastest expansion of responding regulation is happening at the state level, not the federal level. State preemption and local land use authority currently limit the continued national growth of hydraulic fracturing.

Natural gas production between 2005 and 2011 increased 20 percent, largely due to hydraulic fracturing. Initially, fracturing raised nationwide environmental concerns as to the unknown hazards it might pose to adjacent communities and their environments. However, where local communities have little power to affect federal environmental regulations, land use and zoning have historically been regulated by local authorities under state laws. Rather than waiting for Congress, concerned local governments holding lands ripe for gas development are scrambling for local power to directly regulate oil and gas expansion. State government responses to local action have varied across the country.[1]

Pennsylvania sits on the Marcellus Shale, a hotspot for hydraulic fracturing where natural gas production increased six-fold from 2008 to 2011.[2] Unsurprisingly, Pennsylvania’s local governments were among the first to regulate that growth. In 2009, the Supreme Court of Pennsylvania ruled that the Pennsylvania Oil and Gas Act provided local governments with the power to pass ordinances that “control the location of wells consistent with established zoning principles,”[3] and that drilling within zoned residential districts was prohibited by those principles.[4] The state legislature of Pennsylvania reacted to the court’s empowerment of local authorities by passing Act 13 in February, 2012, which made sweeping amendments to the Pennsylvania Oil and Gas Act.[5] The State directly attempted to preempt all local authority from regulating natural gas development by stripping away any existing ordinances and requiring the local allowance of natural gas production to be conducted in all zoning districts, even residential.[6]

However, complete state preemption in Pennsylvania did not last long. The power struggle continued one month later when, in Robinson Township v. Commonwealth of Pennsylvania,an expedited constitutional challenge to Act 13 was filed.[7] The parties bringing the challenge were comprised of several townships, local elected officials, and a public interest organization whose members included township citizens. Act 13 amended the Pennsylvania Oil and Gas Act with the primary purpose of expediting and encouraging increased exploitation of natural gas recovery in the Marcellus Shale.[8] Several entirely new provisions were incorporated, including Chapter 33, requiring the allowance of drilling in residential districts by, “prohibit[ing] any local regulation of oil and gas operations, including via environmental legislation, and requires statewide uniformity among local zoning ordinances with respect to the development of oil and gas resources.”[9] The Plaintiffs argued that such provisions directly violated multiple provisions of the Pennsylvania Constitution.[10]

On December 19, 2013, the Supreme Court of Pennsylvania resolved the constitutional issue of Robinson Township v. Commonwealth of Pennsylvania.[11] The crux of the plaintiff’s case rested on the strength and practical meaning of Article I, Section 27 of Pennsylvania’s Constitution which states,

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people…As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.[12]

The Court began by explaining that a constitutional article that is prohibitory is also self-executing, meaning “the Legislature may not abridge, add to, or alter the constitutional qualification of a right by statute.”[13] Therefore, contrary to the Legislature’s argument that it possessed the power and discretion to implement constitutional duties of the Commonwealth, it is not directed by that article to act as the sole “trustee of the public natural resources.”[14] The Court explained that Article I, Section 27 speaks directly to the Commonwealth, including the citizens and municipalities of Pennsylvania, and directs themto carry out those Constitutional commands themselves, not through elected legislators.[15]

Because of Act 13’s presumption that the Legislature had power to enact laws in the public’s stead and “interpret” or essentially replace the commands of Article I, Section 27, the court found Chapter 33, Sections 3303 and 3304 of Act 13 to be unconstitutional. The court found that the purpose behind Section 3303 was unconstitutional because Article I, Section 27 commands that the environment should be protected by the public trust—the Commonwealth—and not the Legislature alone, as the trustee of that public trust.[16] By placing the Constitutional duty to preserve the environment under the exclusive discretion of the Legislature, “to the exclusion of local ordinances,” Act 13 attempted to remove local municipal authorities as representatives of “The Commonwealth”.[17]

The court additionally found Section 3304 of Act 13 to be unconstitutional as a violation of the Legislature’s own duty and allowance of discretion in protecting the environment for the general welfare of the Commonwealth.[18] Under Article I, Section 27, the General Assembly is obligated, “to prevent degradation, diminution, and depletion of  [Pennsylvania’s] public natural resources….by enacting legislation that adequately restrains actions of private parties likely to cause harm to protected aspects of our environment.”[19]  The court found that Act 13 was not within such discretion because it was not within Article I, Section 27’s purpose to restrain private parties from degrading and depleting the state’s natural resources.[20] Instead, section 3304 of Act 13 sanctioned oil and gas development in every zoning district, regardless of local sentiment on environmental degradation.[21] Such a blanket allowance of oil and gas activity would undoubtedly promote, not prevent, degradation and depletion of the state’s natural resources and environment, while altering populated areas and putting the Commonwealth’s health and quality of life at risk.[22]

For now, local governments and ordinances have prevailed in Pennsylvania since Robinson Township v. Commonwealth has confirmed their constitutional authority to regulate future natural gas development. The decision was a major success to environmentalists and those concerned about the growth and safety of the rapid development of hydraulic fracturing. However, it is a mistake to view the decision as a nationally relevant success. The irony of local struggles against intrastate preemption is that a direct interstate translation is impossible.[23] The success of Robinson was entirely based on Pennsylvania’s Constitution and the particular inclusion of Article I, Section 27. Every state is unique in its ability to preempt local ordinances slowing or regulating oil and gas development.[24] Nationally however, Robinson Township v. Commonwealth can raise the question: what power, if any, are we (citizens and local governments) granted by our state to be a part of oil and gas development in our own backyard? Though the legal outcomes of state preemption may not translate across interstate lines, the question certainly does, as we are a nation of “backyards”.

Preferred citation: Eleanor Brown, Unlimited Implications in a Limited Space: State Preemption in Robinson Township v. Commonwealth, LSU J. Energy L. & Res. Currents (Aug. 27, 2014), http://sites.law.lsu.edu/jelrblog/?p=470.

[1]Shaun A. Goho, Municipalities and Hydraulic Fracturing: Trends in State Preemption, 64 planning & environmental law 3 (2012).

[2] Id. at 5.

[3] Range Res.-Appalachia LLC v. Salem Twp., 964 A.2d 869, 876 (Pa. 2009).

[4] Goho supra, note 1 at 6.

[5] Robinson Township v. Commonwealth, 83 A.3d 901, 915 (Pa. 2013).

[6] Goho supra, note 1 at 6.

[7] Robinson 83 A.3d at 915. The case was expedited because Act 13 was meant to take accelerated effect.

[8] Id at 913.

[9] Id at 915.

[10] Id. at 915-16. Article I, Section 1 of the Pennsylvania Constitution which grants inherent rights of mankind; Article I, Section 10 granting eminent domain; Article I, Section 27 laying out the public interests in natural resources; and the public estate, among others.

[11] Id. at 901.

[12] Id. at 913.

[13] Id. at 975.

[14] Pa. Const. art. I, § 27

[15] Id. at 974.

[16] Id. at 969. Section 3303 of Act 13 states that, “environmental acts are of Statewide concern and, to the extent that they regulate oil and gas operations, occupy the entire field of regulation, to the exclusion of all local ordinances,” and the General Assembly’s stated intent in passing Act 13, Section 3303, was to, “preempt and supersede ‘local regulation of oil and gas operations regulated by the [statewide] environmental acts, as provided in this chapter [33].” Because the Legislature was never authorized to preempt the constitutional authority of intrastate political subdivisions, “implicitly necessary… to carry into effect its constitutional duties,” then Act 13, Section 3303, was unconstitutional under Article I, Section 27 by attempting to usurp any local municipal authority granted by Article I, Section 27 of the Pennsylvania Constitution directing local governments to pass ordinances preserving their environment.

[17] Id. at 977-78.

[18] See id at 978-81.

[19] Id. at 977, 979.

[20] See supra note 18.

[21] Id. at 980.

[22] Id. at 977-78, 980.

[23] John Dernbach, The Pennsylvania Supreme Court’s Robinson Township Decision: A Step Back for Marcellus Shale, A Step Forward for Environmental Rights and the Public Trust, widener environmental law center (Dec 21 2013, 9:39 AM), http://blogs.law.widener.edu/envirolawcenter/2013/12/21/the-pennsylvania-supreme-courts-robinson-township-decision-a-step-back-for-marcellus-shale-a-step-forward-for-article-i-section-27/.

[24] Goho, supra, note 1.