Will Pennsylvania High Court’s Ruling Expose State’s Hydraulic Fracturing Rules to “Public Trust” Challenges?

sboxermanFeatured Expert Column

by Samuel B. Boxerman, Sidley Austin LLP

*This is Mr. Boxerman’s inaugural post as The Legal Pulse‘s Featured Expert Columnist on environmental legal and policy issues.

In Robinson Township v. Commonwealth, the Pennsylvania Supreme Court weighed in on shale gas development policy in Pennsylvania by striking down aspects of the state legislature’s revisions to the state’s oil and gas law known as “Act 13.”  As the Court did not issue a majority opinion, the precedential value of the court’s 162-page opinion remains to be seen, including whether the plurality’s reasoning on a “public trust” theory will extend to other jurisdictions.

Background – Act 13.  Over the past decade, shale oil and gas development has supported economic growth across the U.S.  Pennsylvania has been at the forefront, with production from the Marcellus Shale play.  This development has created jobs and economic growth, as well as controversy, as opponents object to costs imposed on local governments and alleged risks to the environment.  In response, some local governments have banned or otherwise restricted development.  In Pennsylvania, to preempt a growing patchwork of local rules, the legislature enacted Act 13.  The law established statewide rules, including state permits and setback requirements, while simultaneously preempting local zoning laws and other local rules that would impact such operations.  As part of this package, the legislature also imposed impact fees on developers that would be shared with localities once they adopted conforming local ordinances.

Challenge and Rulings.  Several municipalities, interest groups, and individuals challenged the law.  The Pennsylvania Commonwealth Court rejected most contentions, but held that the Act 13 provisions requiring uniformity among local ordinances regulating oil and gas development violated substantive due process.  N1 The parties cross appealed and the Supreme Court struck down portions of the Act, while remanding others. Continue reading “Will Pennsylvania High Court’s Ruling Expose State’s Hydraulic Fracturing Rules to “Public Trust” Challenges?”