Robinson Township, Washington County, Pennsylvania, Brian Coppola, Individually
and in his Official Capacity as Supervisor of Robinson Township, Township of Nockamixon, Bucks County,
Pennsylvania, Township of South Fayette, Allegheny County,
Pennsylvania, Peters Township, Washington County, Pennsylvania, David M. Ball, Individually
and in his Official Capacity as Councilman of Peters Township, Township of Cecil, Washington County,
Pennsylvania, Mount Pleasant Township, Washington County, Pennsylvania, Borough of Yardley,
Bucks County, Pennsylvania, Delaware Riverkeeper Network, Maya Van Rossum,
the Delaware Riverkeeper, Mehernosh Khan, M.D., Petitioners
v.
Commonwealth of Pennsylvania, Pennsylvania Public Utility Commission,
Robert F. Powelson, in his Official Capacity as Chairman of the Public Utility Commission, Office of the Attorney General of
Pennsylvania, Linda L. Kelly, in her Official Capacity as Attorney General of
the Commonwealth of Pennsylvania, Pennsylvania Department of
Environmental Protection and Michael L. Krancer, in his Official Capacity as Secretary of the Department of
Environmental Protection, Respondents
No. 284 M.D. 2012
COMMONWEALTH COURT OF PENNSYLVANIA
Argued: June 6, 2012
FILED: July 26, 2012
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION BY
PRESIDENT JUDGE PELLEGRINI1
Before this Court are preliminary objections filed by the Commonwealth of Pennsylvania, Pennsylvania Public Utility Commission (Commission), et al.,2 (collectively, the Commonwealth) in response to a petition for review filed by Robinson Township, et al.,3 (collectively, Petitioners)
Page 2
challenging the constitutionality of Act 13.4 Also before the Court is Petitioner's motion for summary relief seeking judgment in their favor.5 The Commission and the DEP have filed a cross-motion for summary relief.
On March 29, 2012, Petitioners filed a petition for review in the nature of a complaint for declaratory judgment and injunctive relief in this Court's original jurisdiction challenging the constitutionality of Act 13 pertaining to Oil and Gas - Marcellus Shale.6 Act 13 repealed Pennsylvania's Oil and Gas Act7 and replaced it with a codified statutory framework regulating oil and gas operations in the Commonwealth. Among other provisions involving the levying and distribution of impact fees and the regulation of the operation of gas wells, Act 13 preempts local regulation,8 including environmental laws and zoning code provisions except in
Page 3
limited instances regarding setbacks in certain areas involving oil and gas operations. "Oil and gas operations" are defined as:
(1) well location assessment, including seismic operations, well site preparation, construction, drilling, hydraulic fracturing and site restoration associated with an oil or gas well of any depth;
(2) water and other fluid storage or impoundment areas used exclusively for oil and gas operations;
(3) construction, installation, use, maintenance and repair of:(i) oil and gas pipelines;(4) construction, installation, use, maintenance and repair of all equipment directly associated with activities specified in paragraphs (1), (2) and (3), to the extent that:
(ii) natural gas compressor stations; and
(iii) natural gas processing plants or facilities performing equivalent functions; and
(i) the equipment is necessarily located at or immediately adjacent to a well site, impoundment area, oil and gas pipeline, natural gas compressor station or natural gas processing plant; and
(ii) the activities are authorized and permitted under the authority of a Federal or Commonwealth agency.
58 Pa. C.S. §3301. Act 13 also gives the power of eminent domain to a corporation that is empowered to transport, sell or store natural gas, see 58 Pa. C.S. §3241, and requires uniformity of local ordinances, 58 Pa. C.S. §3304.
Page 4
Petitioners allege that they have close to 150 unconventional9 Marcellus Shale wells drilled within their borders, and Act 13 prevents them from fulfilling their constitutional and statutory obligations to protect the health, safety and welfare of their citizens, as well as public natural resources from the industrial activity of oil and gas drilling. Petitioners allege that Act 13 requires them to modify many of their zoning laws.10
Page 5
In response to the passage of the Act, Petitioners filed a 12-count petition for review alleging that Act 13 violates:
• Article 1 §1 of the Pennsylvania Constitution and §1 of the 14th Amendment to the U.S. Constitution as an improper exercise of the Commonwealth's police power that is not designed to protect the health, safety, morals and public welfare of the citizens of Pennsylvania; (Count I)
• Article 1 §1 of the Pennsylvania Constitution because it allows for incompatible uses in like zoning districts in derogation of municipalities' comprehensive zoning plans and constitutes an unconstitutional use of zoning districts; (Count II)
• Article 1 §1 of the Pennsylvania Constitution because it is impossible for municipalities to create new or to follow existing comprehensive plans, zoning ordinances or zoning districts that protect the health, safety, morals and welfare of citizens and to provide for orderly development of the community in violation of the MPC[11] resulting in an improper use of its police power; (Count III)
• Article 3 §32 of the Pennsylvania Constitution because Act 13 is a "special law" that treats local
Page 6
governments differently and was enacted for the sole and unique benefit of the oil and gas industry; (Count IV)
• Article 1 §§1 and 10 of the Pennsylvania Constitution because it is an unconstitutional taking for private purposes and an improper exercise of the Commonwealth's eminent domain power; (Count V)
• Article 1 §27 of the Pennsylvania Constitution because it denies municipalities the ability to carry out their constitutional obligation to protect public natural resources; (Count VI)
• the doctrine of Separation of Powers because it entrusts an Executive agency, the Commission, with the power to render opinions regarding the constitutionality of Legislative enactments, infringing on a judicial function; (Count VII)
• Act 13 unconstitutionally delegates power to the Pennsylvania Department of Environmental Protection (DEP) without any definitive standards or authorizing language; (Count VIII)
• Act 13 is unconstitutionally vague because its setback provisions and requirements for municipalities fail to provide the necessary information regarding what actions of a municipality are prohibited; (Count IX)
• Act 13 is unconstitutionally vague because its timing and permitting requirements for municipalities fail to provide the necessary information regarding what actions of a municipality are prohibited; (Count X)
• Act 13 is an unconstitutional "special law" in violation of Article 3, §32 of the Pennsylvania Constitution because it restricts health professionals' ability to disclose critical diagnostic information when dealing solely with information deemed proprietary by the natural gas industry while other industries under the federal Occupational and Safety Act have to list the toxicity of each chemical constituent that makes up the
Page 7
product and their adverse health effects; (Count XI) (Dr. Khan is the only petitioner bringing this claim.)
• Article 3, §3 of the Pennsylvania Constitution prohibition against a "bill" having more than a single subject because restricting health professionals' ability to disclose critical diagnostic information is a different subject than the regulation of oil and gas operations; (Count XII) (Dr. Khan is the only petitioner bringing this claim.)12
Petitioners' motion for summary relief echoes the allegations in the petition for review.13
In response to the petition for review, the Commonwealth has filed preliminary objections alleging that: (1) Petitioners lack standing to file their action;
Page 8
(2) Petitioners' claims are barred because they involve non-justiciable political questions; and (3) Counts I through XII fail to state claims upon which relief may be granted. Regarding Counts XIII and XIV, the Commonwealth alleges that Petitioners have not set forth a separate cause of action for granting relief and also fail to state claims upon which summary relief may be granted. It requests that we dismiss the petition for review and, necessarily, its motion for summary relief as well. The Commonwealth has also filed a cross-application for summary relief.
The Commonwealth contends that the seven municipalities (municipalities), the two councilmembers, the physician and the environmental association do not have standing to challenge the constitutionality of Act 13.
In simple terms, "standing to sue" is a legal concept assuring that the interest of the party who is suing is really and concretely at stake to a degree where he or she can properly bring an action before the court. Baker v. Carr, 369 U.S. 186 (1962) (stating that the "gist" of standing is whether the party suing alleged such a personal stake in the outcome of the controversy); 3 CHARLES H. KOCH, JR., ADMINISTRATIVE LAW AND PRACTICE, §14.10, at 387 (2d ed. 1997). Pennsylvania has its own standing jurisprudence, although the doctrine of standing in this Commonwealth is recognized primarily as a...
