'Robinson Township v. Commonwealth': What Does It Mean For Oil And Gas Development And Land Use Regulation?

Two months have passed since the Pennsylvania Supreme Court's landmark decision in Robinson Township v. Commonwealth,1 which invalidated Pennsylvania's efforts to regulate land uses associated with oil and gas operations on a uniform statewide basis. Even so — and despite the ink that journalists, lawyers and other commentators have used analyzing the decision — observers are still trying to figure out what it ultimately means for oil and gas development, for land use regulation more broadly and for the overall course of environmental regulation and litigation in Pennsylvania.

This is perhaps inevitable, given that the case generated four separate opinions spanning more than 100 pages and especially given that the four-justice majority could not agree on a rationale for invalidating statewide zoning rules. But the confusion that has resulted is not simply a function of the decision's length and the court's disagreements.

Both the three-justice plurality and the concurring opinion, which adopted the Commonwealth Court's rationale, could have extraordinary breadth. The decision has the potential to fundamentally alter the relationship between the judiciary, legislature and executive branches, rewrite the relations between Pennsylvania and its local governments, and expand judicial review over all governmental actions that have any arguable impact on Pennsylvania's aesthetic, natural or historical resources. Whether that turns out to be the case will depend on future rulings.

ACT 13'S OVERHAUL OF OIL AND GAS REGULATION AND THE ENSUING COURT CHALLENGE

Act 13 of 2012, one of Republican Gov. Tom Corbett's legislative priorities, was a comprehensive legislative effort to address various policy issues that had arisen as a result of the Marcellus Shale "boom" in northern and western Pennsylvania. Among other things, Act 13 sharply curtailed local regulation of oil and gas activities. For example, it allowed oil and gas wells, pipelines and impoundments in every zoning district, using setback requirements rather than categorical prohibitions to limit activities in high-density areas, and allowed compressor stations and gas processing plants in industrial and agricultural zones, subject to setbacks and noise limits.

The act also prohibited municipalities from treating oil and gas operations differently from other land uses and imposed time limits on local consideration of applications.2 Act 13 also defined minimum setbacks for operations near streams and wetlands but gave the state Department of Environmental Protection authority to waive these restrictions.3

Act 13 was highly controversial and was immediately challenged in the Commonwealth Court, a specialized court with jurisdiction over suits against the commonwealth. The plaintiffs argued that Act 13 violated the Pennsylvania Constitution's provisions protecting the inherent rights of mankind, limiting eminent domain and guaranteeing the conservation of natural resources, among other things. The plaintiffs also argued that Act 13 violated the "separation of powers" doctrine and the U.S. Constitution's due process clause. The matter moved expeditiously and was decided summarily only five months after Act 12 was enacted.

The Commonwealth Court narrowly held 4-3 that Act 13's statewide land-use regime violated principles of substantive due process because it "allow[ed] incompatible...