On July 26, 2012, the Pennsylvania Commonwealth Court issued its decision in Robinson Township, et al. v. Commonwealth of Pennsylvania, involving the challenge brought by seven townships and boroughs to the Act 13 provision preempting local regulation involving oil and gas operations, codified at 58 Pa. C.S. Section 3304. In a 4-3 decision authored by President Judge Pellegrini, the Commonwealth Court granted the relief sought by the townships in Counts I, II, and III of their Petition and declared 58 Pa. C.S. Section 3304 unconstitutional, null and void and permanently enjoined the Commonwealth from enforcing its provisions. The other provisions of Act 13 that enforce 58 Pa. C.S. Section 3304 are similarly enjoined, but the remainder of Act 13, which was not challenged in this action, remains in effect.

While the Court sustained the Preliminary Objections of the Commonwealth on eight of the twelve counts in the Petition, dismissing those claims, the majority held that 58 Pa. C.S. Section 3304 “violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications – irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height structures, screening and fencing, lighting and noise.” Opinion at 33. The full Court, including the three judges who dissented on the issue of whether the preemption provision violates substantive due process, agreed that 58 Pa. C.S. Section 3215(b)(4), which gives the DEP discretion to waive the setback requirements set forth in Section 3215(b), is unconstitutional because it gives the DEP power to make legislative policy judgments otherwise reserved for the General Assembly without sufficient guidance to the DEP as to when to grant such waivers.

Judge Brobson authored the Dissenting Opinion and concluded that Section 3304 of Act 13 is, in essence, a zoning ordinance and a challenge to such a zoning ordinance must be evaluated under established precedent of the Pennsylvania Supreme Court whereby a “zoning ordinance is a valid exercise of the police power when it promotes public health, safety or welfare and its regulations are substantially related to the purpose the ordinance purports to serve.” Opinion at PKB-7. The dissent concluded that Section 3304 of Act 13 is a valid exercise of the police power because the law promotes the health, safety, and welfare of all Pennsylvanians by establishing zoning guidelines to local municipalities that ensures the uniform and optimal development of oil and gas resources in the Commonwealth.

A statement from the office of Governor Tom Corbett indicated that the Commonwealth will "vigorously defend this law," and the Commonwealth filed a notice of appeal to the Pennsylvania Supreme Court on July 27, 2012. We will have additional analysis of the Commonwealth Court's decision and information regarding the status of the appeal in next month’s issue of The Shale Play Today.