On July 17, 2014, following a December 19, 2013, remand by the Pennsylvania Supreme Court, the Commonwealth Court issued its opinion addressing challenges to several sections of Pennsylvania’s new Oil and Gas Act (known as Act 13).
The Commonwealth Court, in a split decision, held: (i) that the sections granting the Public Utility Commission (“PUC”) and Commonwealth Court jurisdiction to review local ordinances are not severable from the provisions of Act 13 found to be unconstitutional by the Supreme Court in December; (ii) that the Act did not violate equal protection by requiring the Pennsylvania Department of Environmental Protection to notify only public water supply owners of spills; (iii) that health professionals constitutionally can be prohibited from disclosing the identity and amount of hydraulic fracturing additives; and (iv) that Act 13 does not unconstitutionally grant natural gas companies eminent domain power (Two of the five judges hearing the case issued concurring and dissenting opinions).
Most notable however, is the Commonwealth Court majority’s decision regarding the provisions of Act 13 which granted the PUC and Commonwealth Court jurisdiction to review local ordinances to determine whether they complied with Act 13 and Pennsylvania’s Municipal Planning Code (“MPC”), and if not, to withhold impact fees and/or to impose attorney fees and costs.
In its opinion, the Commonwealth Court majority held that the procedural provisions of Act 13, Sections 3305 – 3309, allowing for review of contested zoning ordinances were inseparable from the sections declared unconstitutional by the Pennsylvania Supreme Court (Importantly, the concurring and dissenting judges both agreed that the provisions regarding PUC and Commonwealth Court jurisdiction were severable and should have been retained).
The majority reasoned that the review process was so intertwined with the substantive provisions which the Supreme Court found to be unconstitutional that they could not be enforced independently. Therefore, the Commonwealth Court enjoined the application and enforcement of Sections 3305 – 3009. As a result, operators and landowners objecting to local zoning ordinances must continue to start those challenges before the local zoning boards, township supervisors, or, in certain cases, the Court of Common Pleas.
This post was written by Shannon DeHont (firstname.lastname@example.org or +1 724 416 0431) and Joshua Snyder (email@example.com or +1 724 416 0432) from Norton Rose Fulbright’s Energy Practice Group.