Local control: Pa. justices resurrect a lost principle on drilling

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Chalk one up for the little guy.

The state Supreme Court ruled last week that a fundamental provision of Pennsylvania’s wide-ranging rules on gas drilling went too far, a victory for municipal officials and residents.

The ruling provides complicated answers to numerous legal challenges, but the most immediate significance relates to zoning. By 4-2, the justices said Act 13 is unconstitutional because it overrode long-established authority of local officials over municipal zoning.

Chief Justice Ronald Castille — joined by justices Debra McCloskey Todd and Seamus McCaffery — also provided unprecedented support for a section of the state constitution’s Declaration of Rights that says the “people have a right to clean air, pure water and to the preservation of the natural, scenic, historic and esthetic values of the environment.”

Although adopted in 1971, the amendment has never had any enforcement teeth. It is nonetheless unclear what, if any, impact that language will have because, although Justice Max Baer agreed that Act 13 is unconstitutional regarding its zoning provisions, he did not endorse Justice Castille’s writing. Even so, the chief justice’s strong language is good news to environmentalists.

Likewise, the court delivered a welcome message for Pennsylvania physicians. It said the lower, Commonwealth Court must allow doctors to challenge the so-called “medical gag rule,” a provision that would have restricted what they could tell patients about health impacts related to shale gas drilling.

Also promising is a part of the ruling that said Commonwealth Court should review whether the Legislature should be able to enact a law that applies to only one industry.

While industry executives claimed that the ruling will put a stake in the heart of gas drilling in Pennsylvania, the decision does not mean hydraulic fracturing can be banned, nor does it prohibit the state from regulating it. Far from it.

It restores to local officials the authority they have long held to tailor ordinances to the wishes and needs of their residents. Perhaps even more significantly, the ruling gives the Legislature a chance to re-do the law, with the hope that this time one will be adopted that puts Pennsylvania residents first.

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