Last week, the Pennsylvania Supreme Court held major portions of Pennsylvania’s new natural gas development law — Act 13 — unconstitutional. This decision returns local zoning control to municipalities where fracking is or will be taking place and alters the context for development of Marcellus Shale natural gas sources in Pennsylvania.
Even more important, however, than what was done by the court was the basis of the decision. Chief Justice Ronald D. Castille’s opinion in the case gave life to Pennsylvania’s previously moribund environmental rights constitutional amendment and may one day be seen as the most important environmental decision ever written by an American jurist.
There was no majority opinion in the case, Robinson Township v. Pennsylvania. The vote was 4-2 — Justice Joan Orie Melvin did not participate — striking down Act 13’s preemption of all local oil and gas regulation, its requirement that gas drilling be allowed in even residentially zoned districts and its provision of mandatory waiver of setbacks to protect streams and other water sources.
The decision also granted standing to a doctor to challenge the confidentiality restrictions contained in the act. The decision remanded to Commonwealth Court consideration of both the doctor’s claim and of the claim whether the rest of Act 13 should be struck down, either as a prohibited “special law” or because its other provisions could not be separated from those that had been invalidated.
Chief Justice Castille wrote the lead opinion, joined by Justices Debra McCloskey Todd and Seamus P. McCaffery. Justice Max Baer cast the decisive fourth vote in a separate concurrence, joining the result but not the reasoning of the lead opinion. Justices Thomas G. Saylor and J. Michael Eakin dissented.
Justice Baer voted to invalidate Act 13 on the ground that the act violated the substantive due process rights of landowners adjacent to drilling to “quiet enjoyment” of their real property, a right that could only be protected at the local level. This had been the ground of the Commonwealth Court’s prior decision in the case. This ground would have rendered the case very important for oil and gas development law but it would not have changed the terms of future environmental litigation in Pennsylvania.
Chief Justice Castille’s lead opinion, based the invalidity of Act 13 on a violation of Article I, Section 27 of the Pennsylvania Constitution, the 1971 environmental rights amendment, which promises the people of Pennsylvania the right to “clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.” Act 13’s elimination of local control over natural gas development violated the commonwealth’s obligations as trustee to protect Pennsylvania’s “public natural resources.”
In light of Pennsylvania’s history of environmental degradation at the behest of industry, Act 13 was the type of enactment the amendment was meant to prohibit. The opinion assured that the amendment does not forbid development of the state’s natural resources, but it does require that development proceed in a sustainable way.
To get to this result, Chief Justice Castille overturned most of the amendment’s prior case law, which had held that satisfying statutory environmental protections is all the amendment requires. From now on, the amendment must be enforced according to its expansive language and intent.
Clearly, if this is now the law, there has been a revolution in Pennsylvania environmental litigation. Many would say, for example, that the commonwealth has similarly failed in its obligation to prevent the buildup of greenhouse gas emissions in Pennsylvania. But how important is Chief Justice Castille’s opinion, since it is only a plurality and not a majority opinion? And how important is his opinion to the nation, since other states lack Pennsylvania’s environmental constitutional protections?
The answer to both questions is that Chief Justice Castille’s opinion is likely to lead to a judicial reconsideration of environmental protections generally. In terms of Pennsylvania, the lower courts will notice both the length and thoroughness of the opinion and the willingness of Justice Baer to agree that enforcing the amendment is not a political question, lacking in enforceable standards.
And in terms of the nation, judges in other states will note that the chief justice described the rights protected by the amendment as “inherent.” Pennsylvanians enjoy these rights by amendment but they remain rights in all people.
Is this the old siren song of judicial supremacy, of judges invading the prerogatives of democracy? There is that danger. But in this day of big money influencing all of political life and of an increasing chasm between the super-rich and everyone else, there may be only one branch of government in which the environment and the needs of future generations can still get a hearing — the judiciary. And if that offends the Legislature and the governor, they have only themselves to blame.
Bruce Ledewitz is professor of law at Duquesne University and co-director of the Pennsylvania Constitution Website. Professor Ledewitz had occasional discussions with the plaintiffs during this litigation.